Bombay High Court | Magistrate’s Preliminary Order Under Section 145 CrPC Not Required When Inquiry Is Directed by High Court or Supreme Court
Sanchayita Lahkar
The High Court of Judicature at Bombay, Single Bench of Justice Amit Borkar, has held that Romell Housing LLP is entitled to restoration of possession over disputed land in Dahisar, thereby reinstating the Metropolitan Magistrate’s order. The Court clarified that in proceedings under Section 145 of the Code of Criminal Procedure (now Section 164 of the Bharatiya Nagarik Suraksha Sanhita), when an inquiry is expressly directed by the High Court or the Supreme Court, the Magistrate is not required to issue a separate preliminary order. Justice Borkar observed that the higher court’s directive itself records satisfaction of a dispute likely to cause breach of peace, leaving the Magistrate to determine possession as directed. Based on conveyance deeds, surrender documents, payments, and acts of control such as fencing and security arrangements, the Court concluded that the applicants were in settled possession and ordered the Court Receiver to hand over the property with police assistance if needed.
The applicants, Romell Housing LLP and its partner Jude Romell, assailed the order passed by the learned Additional Sessions Judge, which had set aside the order of the Metropolitan Magistrate in Section 145 proceedings concerning disputed land at Village Dahisar, Taluka Borivali, Mumbai Suburban District, measuring approximately 68,339.30 square meters.
The dispute arose after the applicants claimed possession based on Deeds of Surrender, Deeds of Assignment, registered Conveyance Deeds, and possession letters executed in 2016 and 2017 by late K.N. Shaikh and others. Consideration of Rs. 47 lakhs was paid through cheques with deduction of TDS, and registered Sale Deeds were executed by Valentine Properties Pvt. Ltd. and Pooja Land and Premises Pvt. Ltd. The applicants subsequently fenced the land, installed portable cabins, engaged 19 security guards from the Maharashtra State Security Guards Board, and erected boards displaying their name.
On 22 April 2017, respondent Sameer Shaikh lodged an FIR at Dahisar Police Station alleging dacoity, assault, theft, and dispossession by the applicants and their associates. Following this, police intervened and removed cabins and fencing erected by the applicants, leading to their alleged dispossession. The applicants challenged this action and the matter was referred for inquiry under Section 145 Cr.P.C. by order of the Division Bench of the High Court on 14 February 2018, which was confirmed by the Supreme Court.
Before the Magistrate, the applicants examined 15 witnesses, produced original documents, and demonstrated continuous possession through various acts. The respondents examined five witnesses and argued that K.N. Shaikh remained in possession, relying on oral testimony and medical evidence of his hospitalisation. The Magistrate, however, recorded findings in favour of the applicants, holding that they were in possession and had been dispossessed. The Sessions Court, in revision, set aside this order, holding the applicants’ documents inadmissible and doubting the genuineness of possession letters.
The applicants, being aggrieved, approached the High Court challenging the revisional order.
Justice Amit Borkar examined the scope of Section 145 Cr.P.C. and recorded: “The central question which falls for determination is limited and precise. It is whether on 22nd April 2017 who were in possession of the said land, or whether any party was forcibly dispossessed within two months prior to that date.” The Court reiterated that “Section 145 of the Code is part of the preventive powers given to a Magistrate. These powers can be used when the Magistrate is satisfied that there is a dispute likely to cause breach of the peace. Its object is not to decide who is the owner or who has permanent rights, but only to deal with an urgent situation by identifying and protecting the party in possession so that peace is not disturbed.”
The Court stated that in such proceedings “the Magistrate is not required to go into the question of title. The sole inquiry is as to possession on the date of dispute, having regard to the urgency and possibility of breach of peace.” Citing Supreme Court precedents, the Court recorded: “Possession can be proved not only by ownership papers or title documents but also by overt acts showing control over the property.”
The Court found that the applicants had produced registered conveyances, possession letters, proof of consideration, tax receipts, electricity bills, evidence of security arrangements, and photographs of cabins and fencing. These, the Court observed, were “not the actions of someone dealing in paper transactions; they reflect deliberate steps to secure both ownership and control.” The Court noted that the panchnama of 22 April 2017 itself recorded the presence of the applicants’ structures at the site.
On the Sessions Court’s approach, Justice Borkar observed: “The Sessions Court, however, chose to set aside this order. It did so by applying strict rules of proof under the Indian Evidence Act, 1872, as if it were dealing with a civil trial. It discarded important documents relied upon by the applicants on technical grounds like want of registration or alleged defects in execution. In adopting this approach, the Sessions Court overlooked the true nature and purpose of proceedings under Section 145 Cr.P.C.”
The Court rejected objections about non-issuance of a preliminary order, stating: “Once the High Court and the Supreme Court themselves directed the Magistrate to conduct an inquiry under Section 145, the absence of a separate preliminary order by the Magistrate cannot make the proceedings invalid.”
The Court stated: “For all these reasons, I allow the revision application. The order dated 4th August 2022 passed by the Additional Sessions Judge in Criminal Revision Application No.340 of 2019 is set aside. The order dated 21st December 2019 passed by the Metropolitan Magistrate, 26th Court, Borivali, which directed the Court Receiver to hand over possession of the said land to the applicants is restored.”
“I further direct the Court Receiver to hand over physical possession of the said land to the applicants strictly in accordance with the order of the learned Metropolitan Magistrate. The applicants shall first pay the charges of the Court Receiver as assessed by that office. Once such payment is made, the Court Receiver shall complete the process of handing over possession without any delay.”
“The Court Receiver shall also take police assistance, if needed, to ensure peaceful execution of this order and to prevent any obstruction. The respondents are directed to extend full cooperation to the Receiver and not to interfere in the process of handing over possession.”
“Lastly, it is clarified that the investigation by the CBI and any criminal trial shall go on unaffected by this order. This judgment is confined only to deciding the question of possession under Section 145 Cr.P.C. It does not affect or prejudge the rights of any party in civil proceedings, which will be decided by the competent civil court in due course of law.”
“For the reasons stated in the order, the request for stay is rejected.”
Advocates Representing the Parties
For the Petitioners: Mr. Girish Godbole, Senior Advocate with Mr. Drupad Patil i/by Mr. Dheeraj D. Patil
For the Respondents: Mr. Chaitanya Pendse with Mr. Atharva S. Jagtap; Mrs. Rajashree V. Newton; Mr. Rohan Sawant i/by Mr. Laxman Jain; Mr. Dinesh Purandare, Senior Advocate with Ms. Vinodini Srinivasan, Mr. Parag Shah, and Ms. Shraddha Prajapati
Case Title: Romell Housing LLP & Anr. v. Sameer Salim Shaikh & Ors.
Neutral Citation: 2025: BHC-AS:38356
Case Number: CRA NO.108 OF 2023
