The directors sent the man with the gas cutters, the complaint said, and that one word did not make them trespassers

Justice Ranjitsinha Raja Bhonsale upheld the discharge of two directors from a trespass case, holding that criminal and house trespass need the offender at the spot and that common intention must be pleaded, not presumed.

A Chembur developer complained that the directors of a rival company sent their site supervisor, along with men carrying gas cutters, to cut through the gate of a disputed plot and damage its signboards. A magistrate issued process against all three. The Sessions Court dropped the two directors from the case, and the Bombay High Court has now upheld that decision, twelve years after the developer challenged it. The Court's reason is that the complaint said only that the directors had "sent" the supervisor, which is not enough to make them liable through common intention for a trespass that requires the offender to be physically present.

A long fight over one plot

Kukreja Construction Company, a partnership firm of builders, says it has been in possession of about 7,579.44 square metres at Chembur village, bearing CTS Nos. 1813, 1814 and 1814/1 to 54, since 1981 under a development agreement with the owners. Some co-owners who had already received their share of the consideration later executed a conveyance in favour of the directors of Utsav Infrastructure Pvt. Ltd. without cancelling the earlier agreement. Kukreja filed a criminal complaint against those co-owners in 2009.

It also filed a civil suit. In Suit No. 180 of 2008 it sought specific performance of the development agreement, and on 13 October 2008 the High Court restrained the directors and the co-owners from creating third-party rights. Their appeal was dismissed on 8 February 2010. A special leave petition against that order has been pending in the Supreme Court since 2010, with no interim relief.

The complaint described three incidents. On 31 March 2008 the two directors and their representatives allegedly tried to enter the property and abused and threatened the security guards. On 21 May 2011 their supervisor allegedly came to take possession by force, assaulted the guards and damaged boards, which led to a non-cognisable complaint. The third incident, on the evening of 31 May 2011, is the one the case turned on. The supervisor allegedly arrived with unknown men carrying gas cutters, threatened the guards, cut the main gate and cut off the angle of a signboard.

Process issued, then partly quashed

On 27 January 2012 the Additional Chief Metropolitan Magistrate at Kurla issued process against all three accused under Sections 427, 447 and 452 read with Section 34 of the Indian Penal Code: mischief, criminal trespass and house trespass after preparing to cause hurt, each attributed jointly through common intention. On 11 March 2014 the Additional Sessions Judge partly allowed their revision. Process was quashed against the two directors and sustained against the supervisor, and Kukreja filed this petition the same year.

Kukreja argued that the supervisor was an employee acting on the directors' instructions. It pointed to his own affidavit in the High Court, which said the managing director had told him he owned the property and that he had never been told about the pending suit. It also relied on the shared office address of all three, the photographs and the guards' contemporaneous complaints, and on authorities holding that at the summoning stage a court needs only a prima facie case or strong suspicion. It argued that common intention can be inferred from conduct and can form on the spot, and that a directors' absence from the scene does not by itself rule out joint liability.

The directors replied that the complaint contained no allegation against them beyond having "sent" the supervisor, pleaded no common intention or meeting of minds, and admitted that they were not at the scene. The State adopted the complainant's arguments.

Presence depends on the offence

Justice Ranjitsinha Raja Bhonsale did not accept that physical presence is always required for Section 34. In his view, whether it is needed depends on the nature of the offence and how it was carried out. Offences involving physical violence or a positive overt act generally need the accused at the scene. Offences made up of different acts done by different people at different times, and conspiracies charged under Section 120B, may not. Section 34 does not create an offence. It is a principle of joint liability, and it requires both a common intention formed before the act and some participation in it.

He also noted that Shreekantiah Ramayya Munipalli, the decision the directors relied on, was explained by the Supreme Court in Jaikrishnadas Manohardas Desai as not applying universally to every Section 34 case.

Applied to this case, the offences were criminal trespass and house trespass, and for those physical presence is essential. The directors were admittedly not there. The complaint did not even mention a common intention or a pre-arranged plan, and it did not say how the complainant knew that the directors had sent the supervisor. The Sessions Court had relied on Aizaz v. State of U.P., and the High Court agreed that inference has to be drawn from pleaded facts, which were missing here. Following Sanjay Puran Bagde v. State of Maharashtra, the judge held that because common intention is the foundation of the deeming fiction in Section 34, it must be properly pleaded.

The 2008 incident did not help. It was a separate and distinct episode, and referring to it could not supply what was missing about the incident of 31 May 2011.

Order

The Court held that no prima facie case was made out against the two directors, either for the main offences or for acting with common intention. The Sessions Court's order was neither erroneous nor perverse, and the petition was dismissed. The process against the supervisor still stands, so the prosecution continues against him alone.

Mr Vikram Sutaria appeared for Kukreja Construction, instructed by DSK Legal. Mr Mayur Sonavane, Additional Public Prosecutor, appeared for the State, and Mr Shyam Kochrekar for the two directors. A sub-inspector from Govandi police station was present. The petition was filed in 2014, reserved on 27 July 2026 and decided on 12 October. The ownership dispute is still before the Supreme Court.