Case Note & Summary
The petitioner, Shri Noberto Paulo Sebastiao Fernandes, through his constituted attorney, filed a criminal writ petition before the High Court of Bombay at Goa challenging the order dated 20th August 2025 passed by the Additional Sessions Judge, Mapusa, Goa, in Criminal Revision Application No.47/2025. The background of the case is that the Deputy Collector and Sub-Divisional Magistrate of Pernem, Goa, acting under Section 164 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), passed an order on 7th April 2025 directing that the petitioner is entitled to possession of House No.793 situated in survey No.171 sub-division 6 of Village Morjim, Pernem, Goa. This order was passed to prevent breach of peace and maintain public order. Respondent Nos.1 and 2, who were the opposite parties before the Magistrate, challenged this order by filing a revision application under Section 438 of the BNSS before the Additional Sessions Judge. The revisional court, without issuing any notice to the petitioner, called for the record and, by the impugned order, quashed and set aside the Magistrate's order. The petitioner then approached the High Court contending that the revision was not maintainable as Section 164 BNSS proceedings are summary in nature and not subject to revision under Section 438 BNSS, and that the revisional court violated principles of natural justice by not hearing him before passing the adverse order. The High Court analyzed the scope of Section 164 BNSS, which empowers an Executive Magistrate to pass urgent orders to prevent breach of peace or public nuisance, akin to Section 144 of the old CrPC. The court held that such proceedings are summary and intended for temporary and emergent situations, and an order under Section 164 BNSS is not a final adjudication of rights. The court further held that Section 438 BNSS applies only to orders passed in criminal proceedings that are not interlocutory, and an order under Section 164 BNSS is not amenable to revision. Additionally, the revisional court's failure to issue notice to the petitioner before setting aside the order was a gross violation of natural justice. Consequently, the High Court allowed the writ petition, quashed the impugned order of the Additional Sessions Judge, and restored the Magistrate's order dated 7th April 2025.
Headnote
A) Criminal Procedure - Summary Proceedings - Section 164 BNSS - Maintainability of Revision - Proceedings under Section 164 of the Bhartiya Nagarik Suraksha Sanhita, 2023 are summary in nature and intended for urgent preventive measures to maintain public order and prevent breach of peace. An order passed under Section 164 BNSS is not amenable to revision under Section 438 BNSS as the latter applies only to orders passed in criminal proceedings that are not interlocutory. The revisional court erred in entertaining the revision and setting aside the order without notice to the petitioner, violating principles of natural justice. (Paras 1-10, 15-20) B) Natural Justice - Right to Hearing - Revision Proceedings - The revisional court, while exercising powers under Section 438 BNSS, must afford an opportunity of hearing to the affected party before passing any adverse order. In the present case, the Additional Sessions Judge set aside the Magistrate's order without issuing notice to the petitioner, which is a gross violation of natural justice. The impugned order is liable to be set aside on this ground alone. (Paras 12-14) C) Criminal Procedure - Section 164 BNSS - Scope and Purpose - Section 164 of the BNSS empowers the Executive Magistrate to pass urgent orders to prevent breach of peace or public nuisance. The provision is akin to Section 144 of the old CrPC and is meant for temporary and emergent situations. The Magistrate's order directing possession of the house was within his jurisdiction and based on material showing likelihood of breach of peace. (Paras 5-8)
Issue of Consideration
Whether a revision application under Section 438 of the BNSS is maintainable against an order passed under Section 164 of the BNSS, and whether the revisional court could set aside the order without notice to the petitioner.
Final Decision
The High Court allowed the writ petition, quashed the impugned order dated 20th August 2025 passed by the Additional Sessions Judge, Mapusa, in Criminal Revision Application No.47/2025, and restored the order dated 7th April 2025 passed by the Deputy Collector and Sub-Divisional Magistrate, Pernem, under Section 164 BNSS.
Law Points
- Section 164 BNSS proceedings are summary in nature
- Revision under Section 438 BNSS not maintainable against order under Section 164 BNSS
- Natural justice requires notice to affected party before revision
- Power under Section 164 BNSS is for urgent preventive measures
- Order under Section 164 BNSS is not a final adjudication of rights
