Case Note & Summary
The High Court of Bombay at Goa heard a criminal writ petition under Article 227 of the Constitution of India arising from a dispute over property bearing Survey No.171/6 of Village Morjim, Goa. The petitioner, acting through a constituted power of attorney holder, claimed ownership and possession of the property and a structure existing on it. The respondents had earlier filed proceedings before the Mamlatdar of Pernem seeking declaration as mundkars in relation to a house structure under House No.793, which was dismissed on 09.07.2019; their appeal before the Deputy Collector and SDO was dismissed on 24.11.2020, and a revision application remained pending before the Administrative Tribunal of Goa. No interim relief had been obtained by the respondents in those proceedings. The petitioner filed police complaints on 21.01.2025 and 23.01.2025 alleging trespass and apprehension of breach of peace. Acting on the second complaint, the Deputy Collector and Sub-Divisional Magistrate initiated proceedings under Section 164 of the Bharatiya Nagarik Suraksha Sanhita, 2023, issued notice, and by order dated 07.04.2025 held the petitioner entitled to possession of Survey No.171/6 and the structure, directed the respondents not to interfere, restrained them from causing breach of peace, and directed police vigilance. The respondents challenged that order in Criminal Revision Application No.47/2025 before the Additional Sessions Judge, Mapusa under Section 438 BNSS. On 24.04.2025, with consent of advocates and without prejudice, the Sessions Court directed the police to lock and seal the structure and deposit keys with the court, pending disposal. Subsequently, the respondents filed an application at Exhibit D-17 dated 19.07.2025 seeking permission to open the sealed structure for Nagpanchami festival from 28 to 30 July 2025 and Ganesh Chaturthi from 24.08.2025 to 03.09.2025. The petitioner opposed the application, raising a preliminary objection that Section 438 BNSS did not confer jurisdiction on a revisional court to grant such relief and that granting it could breach peace. By order dated 23.07.2025, the Sessions Court partly allowed the application, directing the police to open the structure on 28.07.2025 for a panchanama and for respondents to use it, then reseal it on 30.07.2025 and return keys, with police constable visits to ensure peace and no alterations. The petitioner then filed the present writ petition challenging that order on grounds of lack of jurisdiction and absence of consent. The petitioner argued that Section 438 BNSS only empowers suspension of sentence or order and examination of records, not interim possession orders, and that the SDM's finding of possession could not be varied except by stay or suspension. The respondents argued that Article 227 jurisdiction was narrow, that the order contained adequate safeguards, and relied on Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, (2010) 8 SCC 329; High Court of Gujarat v. Hitendra Vrajlal Ashara & Anr., (2014) 15 SCC 614; and M.S. Sanjay v. Indian Bank & Ors., Civil Appeal No. 1188/2025. The available text did not include the final operative decision of the High Court.
Headnote
A) Criminal Procedure - Revisional Jurisdiction - Scope of Section 438 BNSS - Bharatiya Nagarik Suraksha Sanhita, 2023, Section 438 - The petitioner contended that a revisional court under Section 438 BNSS may examine the record and suspend execution of any sentence or order but has no power to grant an interim application putting a party in possession or varying an order passed under Section 164 BNSS. The Sessions Court had partly allowed an application seeking access to a sealed structure for religious festivals; the petitioner argued that this was outside revisional jurisdiction. (Paras 13-14) B) Criminal Procedure - Preventive Orders - Possession and Breach of Peace - Bharatiya Nagarik Suraksha Sanhita, 2023, Section 164 - The Sub-Divisional Magistrate passed an order under Section 164 BNSS after recording satisfaction of a dispute likely to cause breach of peace, holding the petitioner entitled to possession and restraining the respondents from interfering. The petitioner submitted that the Sessions Court's order permitting the respondents to use the structure effectively varied this preventive order without jurisdiction. (Paras 6-7, 14) C) Constitutional Law - Supervisory Jurisdiction - Article 227 - Constitution of India, Article 227 - The respondents objected to the writ petition, arguing that supervisory jurisdiction should be exercised only in rare cases of gross injustice or flagrant violation of law, and that the impugned order contained sufficient safeguards. They relied on Shalini Shyam Shetty, High Court of Gujarat, and M.S. Sanjay. (Para 16)
Issue of Consideration
Whether the Sessions Court had jurisdiction under Section 438 of the Bharatiya Nagarik Suraksha Sanhita, 2023 to pass an order allowing respondents to open and use a sealed structure for religious festivals; whether the High Court should exercise supervisory jurisdiction under Article 227 of the Constitution of India to interfere
Law Points
- Revisional jurisdiction under Section 438 BNSS does not include power to grant interim possession or use
- Section 164 BNSS preventive orders are based on possession and breach of peace
- Supervisory jurisdiction under Article 227 is limited to gross injustice or flagrant violation
