‘Breaking open lock without wife’s consent was a well-thought out & deliberate act in collusion with her husband’; Bombay HC refuses to quash FIR against landlord

Bombay High Court: The petitioners (owners of rented property) sought the quashing of FIR registered for the offences punishable under Sections 427¹, 448², 453³ read with 34⁴ of the Penal Code, 1860 (‘IPC’). The Division Bench of A.S. Gadkari and Dr. Neela Gokhale*, JJ., perused the record, and found that the petitioners had colluded with respondent 2/ husband to dispossess respondent 1/ wife from the property, that had been rented to the respondents 1 and 2 on leave and license basis. The Court noted that the leave and license agreement stipulated that the petitioners were to follow the provisions of the Maharashtra Rent Control Act, 1999 (‘Rent Act’) to evict their tenants and said that they could not have taken the law in their hands. The Court held that cognizable offences as alleged under the FIR had been committed and refused to quash the same.

Background

The informant-wife was residing with her husband at the residence owned by petitioner 1 (‘landlord’). In 2017, the husband abandoned the wife and conveyed to her that he was not interested in resuming co-habitation with her and will not return. The wife continued to reside in the same residence. Divorce proceedings were initiated between the two before the Family Court that remain pending.

In 2019, she was informed by the police that the landlord had removed her belongings from the residence. The wife submitted that the Family Court had passed an order, restraining the husband from evicting the wife from the rented premises, and that the landlord had no authority to break into her residence and remove her belongings. She further submitted that the landlord had illegally and unauthorisedly trespassed into in her residence, had damaged her belongings worth Rs. 1,00,000, stolen golden ornaments worth Rs. 30,000, and an amount of Rs. 50,000 was missing. Therefore, she filed the impugned FIR.

Analysis and Decision

The Court viewed that the commission of a cognizable offence was clearly demonstrated in the instant case. The Court noted that the Leave and License Agreement (‘Agreement’) stipulated that the Licensor (landlord) shall take necessary steps under the Rent Act to evict the Licensee (respondents), if the Licensee refuses to vacate the flat on the expiry of license. Therefore, the Court said that the petitioners were not within their rights to have break opened the lock and barged into the informant’s residence, and de hors⁵ the stipulation, the petitioners could not have taken the law in their own hands. Hence, their action was clearly illegal and without any justification.

The Court referred to Krishna Ram Mahale v. Shobha Venkat Rao, (1989) 4 SCC 131, wherein the Supreme Court held that, “where a person is in settled possession of property, even on the assumption that they had no right to remain on the property, they cannot be dispossessed by the owner of the property except by recourse to law.” Thus, the act of petitioner of breaking open the lock without the wife’s consent and taking away her belongings amounted to the offences as alleged against them in the FIR.

The Court noted a major peculiarity in the case while perusing the Order of the Family Court in respect of the pending matrimonial dispute between the husband and found that the husband had applied for the issuance of direction to the wife for handing over the possession of the residence to the landlord. The Court noted thereof that the Family Court had rejected the application, holding-

1. Both the parties used to reside in the said residence;

2. The wife would be rendered homeless if such a direction were passed;

3. The husband would have to arrange for an alternative residence for the wife if he wanted her to vacate the residence;

4. Landlord was at the liberty to seek the vacancy of the residence by adopting the appropriate procedure under the Rent Act.

The Court further noted that the petitioners had placed on record the abovementioned Family Court’s Order, however, did not deliberately mention it during the arguments. When the Court inquired about the said Order, the petitioner’s counsel tried to conceal and denied it. The Court found this action of the counsel reprehensible and quite unacceptable and stated that a counsel is primarily an officer of the Court and owes a duty to the Court to reveal the true facts of the case. Such an action amounts to supressio verri⁶ on the part of the counsel.

These actions of the petitioners’ counsel made the Court impressionable of the entire act of breaking in and removing the belongings of the wife, in an attempt to dispossess her from the residence, being a well-thought out and deliberate act performed in collusion with the husband to overreach the Family Court Order. The Court, therefore, opined that the same shall be dealt with by the Family Court.

The Court held that the matter prima facie disclosed the commission of cognizable offences so alleged in the FIR. Therefore, the Court refused to quash the FIR against the petitioners and dismissed the petition.

[Rangnath Bhanudas Bhagat v. Priyanka Ravindra Ghatage, 2024 SCC OnLine Bom 2887, decided on 05-09-2024]

*Judgment authored by: Dr. Justice Neela Gokhale

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Advocates who appeared in this case :

For the petitioners: Bhushan Raut and Vaibhav Lavande, Advocates

For the respondents: Ashish I. Satpute, APP

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