Bombay High Court
Harkesh Motilal Pal And Ors vs The State Of Maharashtra And Ors on 4 November, 2025
Author: Manish Pitale
Bench: Manish Pitale
2025:BHC-AS:46776-DB
Digitally
signed by
RUSHIKESH
RUSHIKESH VISHNU
VISHNU PATIL
PATIL Date:
2025.11.04
18:43:04
+0530
1
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1263 OF 2014
WITH
INTERIM APPLICATION NO. 4465 OF 2024
Harkesh Motilal Pal and Ors. ... Petitioners
Versus
The State of Maharashtra and Ors. ... Respondents
******
Mr. Vijay Shreeram Bhadkamkar, for the Petitioners.
Ms Sharmila Kaushik, APP, for Respondent Nos.1 and 2-State.
Mr. U. V. Singh, for Respondent Nos. 3(b), 3(c) and 3(e).
Mr. Ayubkhan Pathan, PSI, Sion Police Station, Mumbai.
******
CORAM : MANISH PITALE AND
MANJUSHA DESHPANDE, JJ.
DATE : 4th NOVEMBER 2025
P.C. :
. By this petition the petitioners have sought quashing of FIR
No. 378 of 2013 dated 17th November 2013, registered at Police
Station, Sion, Mumbai, for offence under Section 448 r/w 34 of
the Indian Penal Code (IPC). The said provision pertains to
punishment for house trespass.
2. On 21st April 2014 while issuing notice in this petition, a
Division Bench of this Court granted interim relief to the effect
that no coercive action would be taken against the petitioners
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and that chargesheet would also not be filed in the meanwhile.
The interim order has continued to operate in this petition. The
reply affidavits were placed on record whereby the respondent-
State and the original informant i.e. respondent No. 3, now
represented by his legal heirs, opposed the prayers made in this
petition.
3. The aforesaid FIR was registered on the basis of the
statement given by the original informant, alleging that the
Petitioners broke open the lock of a room in a premises which
was in possession of the informant. According to the informant,
this gave rise to commission of the aforesaid offence on the part
of the petitioners. The incident took place on 17 th November
2013 allegedly between 7.00 to 7.30 p.m.
4. The record shows that during the pendency of this petition,
the original petitioner No. 1 expired. The other petitioners are
the remaining accused persons and they are the widow and the
children of the original petitioner No. 1. In view of the fact that
petitioner No. 1 expired during the pendency of this petition, his
name is deleted from the array of parties.
5. We have heard the learned counsel for the parties at length.
6. Mr. Bhadkamkar, learned counsel appearing for the
petitioners submitted that the instant petition deserves to be
allowed for the reason that, even if the allegations leveled
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against the petitioners are to be taken on the face value, the
essential ingredients of the offence of criminal trespass defined in
Section 441 of the IPC r/w house trespass under Section 442
thereof, are not made out and hence the FIR deserves to be
quashed. In that regard, the learned counsel appearing for the
petitioners referred to the aforesaid provisions and submitted
that the essential ingredients of the said offences under Sections
441 and 442 of the IPC require an intention on the part of the
accused persons to intimidate, insult or annoy the person in
possession of the property in which entry is made unlawfully by
the accused persons. It was emphasized that the dominant or
main intention of the action ought to be to cause such
annoyance, insult or intimidation.
7. By referring to the documents placed on record, it is
submitted that the petitioners had knocked the doors of the Civil
Court in respect of the dispute between them and the original
informant in the present case. It was submitted that the original
petitioner No. 1 was the nephew of the original respondent No. 3
(first informant) and that they were having a running feud with
regard to entitlement in respect of a redeveloped property in the
context of a premises in which the parties claimed to be in
possession when the redevelopment project was undertaken. It
was submitted that the City Civil Court, in a proceeding initiated
by the petitioners passed an order on 05th December 2012
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allowing a Notice of Motion, thereby directing the first informant
to allow the petitioner No. 1 and his family to occupy a particular
flat which was given as an alternative accommodation by the
developer. The original premises had been demolished and
having concluded that the petitioners had made out the prima
facie case in their favour, such a direction was issued against the
first informant. It was emphasized that although in an appeal
from order filed before this Court by the first informant, an
interim stay of the said direction had been granted, on 12 th
November 2013, the appeal was dismissed in default and the
interim stay granted by this Court was vacated. As a
consequence, the order of the City Civil Court passed in favour of
the petitioners was revived, and in that context on 17 th November
2013 i.e. the date of the incident, the petitioners had merely
asserted their right as recognized by the competent Civil Court.
In this backdrop, it is submitted that when the incident took
place, there was no question of criminal intent on the part of the
petitioners, much less any intention to cause annoyance,
intimidation or insult to the first informant. It was further
submitted that the petitioners merely opened one of the rooms of
the aforesaid alternative accommodation and they had placed
some of their belongings in the said room when the police came
to the spot and allegedly whisked them away, as a consequence
of which they could not remain in possession of the said room
any longer.
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8. It is submitted that such an incident could certainly not
lead to the criminal prosecution of the petitioners in light of the
orders passed by the City Civil Court. It was further submitted
that a purely civil dispute was sought to be given the colour of
criminality on the part of the first informant, which ought not to
be permitted. Apart from this, it was brought to the notice of this
Court that even if the appeal from order was eventually restored
and allowed, the suit pending before the City Civil Court was
partly decreed by recognizing the right of the petitioners to the
redeveloped property as co-tenants in the original premises. It is
submitted that this vindicated the stand of the petitioners and
thereby further demonstrated that the FIR deserves to be
quashed. On this basis, it is submitted the petition deserves to be
allowed.
9. On the other hand, Ms Kaushik, learned APP referred to the
statement of the first informant leading to the registration of the
FIR, contending that at the point in time when the incident took
place, the first informant claimed that criminal force was used to
break open the lock of the said accommodation. It is further
submitted that the fact that the appeal from order had been
dismissed in default and the interim stay granted by this Court
had been vacated on 12th November 2013, could not be denied. It
is submitted that the stand taken by the first informant in the
proceeding before the City Civil Court did indicate that prior to
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demolition of the original premises, the first informant was
residing with the petitioner No.1, thereby indicting that the
dispute between the parties appeared to be of civil nature. The
learned APP submitted that this Court may pass appropriate
orders in the present petition.
10. Mr. U. V. Singh, learned counsel appearing for respondents
3(b), 3(c) and 3(e) vehemently opposed the contentions raised
on behalf of the petitioners. It was submitted that after the
appeal from order was dismissed in default and the interim order
was vacated on 12th November 2013, on 16th November 2013 the
petitioner No. 1 had approached the concerned police station
seeking protection for breaking open the lock of the said
alternative accommodation as per the order passed by the City
Civil Court. It was submitted that there was no document on
record to show as to whether the police did assist the petitioner
No.1 and/or the manner in which the petitioner entered upon the
alterative accommodation. It was submitted that these facts
clearly show that instead of approaching the concerned Court for
execution of the order dated 5 th December 2012 passed in favour
of the petitioners, the law was taken in their own hand by the
petitioners with criminal intent and therefore, the petition
deserves to be dismissed. It was submitted that even if, by a
recent judgment and order dated 25th September 2025 the City
Civil Court has partly decreed the suit filed by the petitioners, on
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an application made on behalf of the said respondents, the effect
and operation of the same has been stayed. This is a factor that
ought to be taken into consideration while disposing of the
present petition.
11. Having heard the learned counsel for the rival parties we
are of the opinion that before referring to the documents on
record and the chronology of events, it would be appropriate to
first refer to the essential ingredients of the offence alleged
against the petitioners. The FIR was registered against the
petitioners for offence under Section 448 of the IPC, which
pertains to punishment for house trespass and provides that
whoever commits house trespass shall be punished with
imprisonment for a term which may extend to one year or with
fine, which may extend to Rs.1000/- or with both. The effect of
Section 448 of the IPC would arise only if essential ingredients of
the offences of criminal trespass and house trespass, as defined
under Sections 441 and 442 of the IPC, are made out. The said
provisions read as follows:
"441. Criminal Trespass.- Whoever enters into or upon
property in the possession of another with intent to commit
an offense or to intimidate, insult or annoy any person in
possession of such property,
or having lawfully entered into or upon such property,
unlawfully remains there with intent thereby to intimidate,
insult or annoy any such person, or with intent to commit an
offence, is said to commit "criminal trespass".
442. House-trespass.- Whoever commits criminal trespass by
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entering into or remaining in any building, tent or vessel used
as a human dwelling or any building used as a place for
worship, or as a place for the custody of property, is said to
commit "house-trespass".
Explanation.-The introduction of any part of the
criminal trespasser's body is entering sufficient to constitute
house-trespass.""
12. A bare reading of Section 441 of the IPC, which pertains to
criminal trespass, would show that its essential ingredients
include entry into or upon a property in possession of another
person; such unlawful entry or unlawfully remaining in
possession of such property is with the intention to commit an
offence or to intimidate, insult or annoy any person in possession
of the property. A perusal of the aforesaid provision indeed
indicates that the dominant or main intention of the accused
person must be to cause annoyance, insult or intimidation to the
person who is in possession of the property.
13. These ingredients are also required to be satisfied in the
context of Section 442 of the IPC, which pertains to house
trespass. Thus, the allegations made against the petitioners in
the present case ought to at least prima facie satisfy the aforesaid
essential ingredients of the offences of criminal trespass under
Section 441 and house trespass under Section 442 of the IPC.
14. While analyzing as to whether the aforesaid essential
ingredients of the said offences are satisfied in the present case,
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the chronology of events, which is undisputed, is required to be
referred to.
15. It is undisputed that the parties are related to each other.
The original petitioner No. 1 is the nephew of the original
respondent No. 3 i.e. first informant. It is evident from
documents on record that there is a running feud or dispute
between the parties with regard to entitlement towards
redeveloped property in the light of the original premises being
demolished by the developer. While the petitioners claim that
they too have a right in the context of the demolished premises
as the parties who were living together, the first informant has
outright denied such claims.
16. This is not a case where such a dispute has led to the
petitioners forcibly entering into the alternate accommodation.
The petitioner No. 1 moved the City Civil Court in the context of
the aforesaid right being asserted on behalf of the petitioners.
This led to the aforementioned order dated 5 th December 2012
passed by the City Civil Court, allowing the Notice of Motion
moved by the petitioner No. 1, specifically directing the first
informant to allow the petitioner No. 1 and his family i.e. the
remaining petitioners to reside in the alternative accommodation.
The said direction was to complied within 15 days of the order.
17. The documents on record show that the first informant
filed Appeal from Order No.1354 of 2012 before this Court
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challenging the said order of the City Civil Court. It is an
admitted position that an interim stay was granted in the appeal
from order but, it is crucial to note that on 12 th November 2013,
the appeal from order was dismissed in default and the interim
order was also vacated. A logical consequence of the aforesaid
event was that the order dated 5th December 2012 passed by the
City Civil Court in favour of the petitioners and against the first
informant stood revived. As per the said order, the petitioners
were entitled to entry into the alternative accommodation i.e.
the flat located in Sion, Mumbai.
18. Even according to the first informant, the incident took
place on 17th November 2013. At that point in time, there was no
interim stay to the order dated 5 th December 2012 of the City
Civil Court, under which the petitioners were entitled to entry
into the said alternative accommodation. The record also shows
that the petitioners approached the concerned police station on
14th November 1013 and 16th November 2013 for police
protection and if necessary to break open the lock and enter into
the alternative accommodation. This further demonstrates that
the petitioners were inclined to follow the rule of law as they
were entitled to assert the right created in their favour as per the
order passed by the City Civil Court on 5th December 2012. We
are unable to appreciate the emphasis placed on behalf of
respondent No. 3(b), 3(c) and 3(e) that in the absence of a
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document on record showing as to the manner in which the
police assisted the petitioners or the manner in which they
eventually entered upon the alternative accommodation, it has to
be presumed that they had reached the alternative
accommodation with criminal intent and also with the intention
to commit the offence of criminal trespass.
19. We find that in the facts of the present case the dispute
between the parties essentially appears to be of civil nature. The
petitioners approached the competent Civil Court to assert their
rights, thereby demonstrating the fact that they indeed showed
their faith in the rule of law. In such circumstances and in the
light of an order operating in their favour being asserted by the
petitioners, it cannot be held that on the date of incident on 17 th
November 2013, they reached the alternative accommodation
with a criminal intent to commit an offence or that their actions
satisfied the essential ingredients of the offence of criminal
trespass. This Court is unable to agree with the first informant
when it is claimed on his behalf that the petitioners necessarily
reached the place of incident i.e. the alternative accommodation
with the dominant or main intention of causing annoyance, insult
or intimidation to the first informant, who claimed to be in
possession of the said property.
20. On the contrary, the documents on record sufficiently
demonstrate that the petitioners reached the spot of the incident
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in order to assert their right in the alternative accommodation,
which had been recognized at a prima facie stage by the City
Civil Court in its order dated 5th December 2012. The said order
specifically directed the first informant to allow the petitioners to
occupy and reside in the alternative accommodation. As a matter
of fact, the documents on record show that the petitioners were
asserting their claim bonafide on the basis of an order passed in
their favour by the competent Civil Court.
21. Therefore, the essential ingredients of the offence of
criminal trespass under Section 441 of the IPC, and consequently
of the offence of house trespass under Section 442 of the IPC are
not made out in the present case. Hence, there was no occasion
for registration of the FIR under Section 448 of the IPC against
the petitioners.
22. The subsequent events during the pendency of this petition
also assume significance in the peculiar facts and circumstances
of the present case. It is undisputed that by a recent order dated
25th September 2025 the City Civil Court has partly decreed the
suit in favour of the petitioners, declaring them to be co-tenants
to the extent of ½ share in the aforesaid flat and the first
informant has been perpetually restrained from alienating or
creating third party rights in any manner in respect of the said
flat. Although the effect and operation of the said order has been
stayed at the request of the aforesaid respondents in order to
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enable them to file an appeal before the competent Appellate
Court, that in itself cannot be a factor to dilute the effect of the
findings rendered at this stage by the City Civil Court in its order
dated 25th September 2025.
23. In this backdrop, we find substance in the contention raised
on behalf of the petitioners that a dispute necessarily of civil
nature, which has been agitated before the competent Civil Court
was sought to be given the colour of criminality by the original
respondent No. 3 (first informant). We also find that the
petitioners have satisfied one of the categories specifically
recognized by the Supreme Court in the case of State of Haryana
& Ors. Vs. Bhajan Lal & Ors.1 in paragraph 102(1), wherein it has
been held that if the allegations made in the FIR even if taken at
their face value do not prima facie constitute any offence or make
out the case against the accused persons, such an FIR deserves to
be quashed.
24. In view of the discussion made hereinabove, we reach the
conclusion that the petitioners in the present case have been able
to support their assertion that the FIR deserves to be quashed in
the light of the fact that the basic and essential ingredients of the
alleged offence itself are not made out even if the allegations
leveled against the petitioners are taken at their face value.
25. In view of the above, the petition is allowed in terms of
1 1992 Supp (1) SCC 335
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prayer clause (a). Consequently, the FIR No 378 of 2013 dated
17th November 2013, registered at Sion Police Station against the
petitioners is quashed.
26. Pending applications also stand disposed of.
(MANJUSHA DESHPANDE, J.) (MANISH PITALE, J.)
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