"Sessions Court Transgressed Its Jurisdiction Under Section 438 BNSS": Bombay High Court Quashes Interim Possession Order and Directs Expeditious Disposal of Revision
Safiya Malik
The High Court of Bombay at Goa Single Bench of Justice Valmiki Menezes has quashed an order dated July 23, 2025, issued by the Additional Sessions Judge, Mapusa, in a criminal revision proceeding. The High Court held that the Sessions Court acted beyond the scope of its revisional jurisdiction under Section 438 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), by granting interim possession to one of the parties. The Court directed that the impugned order be set aside and instructed the Trial Court to dispose of the revision application on merits, preferably by August 20, 2025.
The Court observed that the Sessions Court could have either granted or refused a stay of the Executive Magistrate’s order under Section 164 of BNSS but lacked authority to modify the possession status established in that proceeding. The Court underscored the limited scope of revisional jurisdiction and held that altering the possession status pending revision contradicted the statutory scheme aimed at preserving public peace. The writ petition was allowed, and the impugned order was quashed with specific directions for timely disposal of the revision application.
The writ petition concerned an order passed by the Additional Sessions Judge, Mapusa, in Criminal Revision Application No.47/2025, allowing an application (Exhibit D-17) which temporarily restored access to a disputed house structure in Survey No.171/6 of Village Morjim to the Respondents.
The Petitioner, claiming ownership of the said property, filed the writ petition through his Power of Attorney Holder. He contended that the impugned order exceeded the Sessions Court’s jurisdiction under Section 438 of the BNSS. The dispute originated from a mundkarship claim initiated by the Respondents before the Mamlatdar of Pernem under Case No. MAM/PER/MND/2/2014, seeking declaration as mundkars in relation to House No.793 of Village Morjim. This claim was dismissed by the Mamlatdar on July 9, 2019.
An appeal before the Deputy Collector and SDO, Pernem, under Case No. DCP/MND/APL/3-7/2019, also failed, with the order dated November 24, 2020, rejecting the Respondents’ appeal. Subsequently, a revision application was filed by the Respondents before the Administrative Tribunal, Goa, registered as MUND/REV/APPL/NO.11/2021. The Tribunal proceeding remained pending, and no interim relief had been granted therein.
In the interim, the Petitioner lodged complaints with Mandrem Police Station on January 21 and January 23, 2025, alleging that the Respondents trespassed onto Survey No.171/6 and attempted to forcibly possess the property and structures thereon. The Petitioner asserted uninterrupted possession and expressed apprehension of a law-and-order disturbance.
In response, the Sub-Divisional Magistrate (SDM), Pernem, initiated proceedings under Section 164 of the BNSS. On January 29, 2025, the SDM issued notices to both parties, which were returnable on February 10, 2025. After considering the replies and evidence, the SDM passed an order on April 7, 2025, observing that: "The Party No. I is entitled to be in possession of the property bearing Survey No.171 sub-division 6 of village Morjim, Pernem, Goa and the subject structure existing therein. The Party - II and any person claiming through or under them are hereby directed to not interfere with the possession of the Party - I."
The SDM restrained the Respondents from entering the property or interfering with the Petitioner’s possession and directed the Mandrem Police to maintain law and order.
Subsequently, the Respondents filed Criminal Revision Application No.47/2025 before the Sessions Court, Mapusa, under Section 438 BNSS, challenging the SDM's order. On April 24, 2025, the Sessions Court, during arguments on an interim stay, noted in the Roznama that it was agreed — without prejudice — to seal the premises pending disposal of the revision. The Police Inspector, Mandrem Police Station, was accordingly directed to lock and seal the structure and submit the keys to the Court.
On July 19, 2025, the Respondents filed Application Exhibit D-17 before the Sessions Court, seeking temporary access to the sealed house to perform religious rituals during the Nagpanchami festival (July 28–30, 2025), and further access for Ganesh Chaturthi celebrations (August 24 – September 3, 2025). The Petitioner opposed the application on several grounds, including lack of jurisdiction under Section 438 BNSS and risk of disturbing peace.
Despite opposition and a reply dated July 23, 2025, the Sessions Court allowed the application partly, permitting the Respondents to enter the sealed house from July 28–30, 2025, to conduct rituals, under police supervision. The order was uploaded on July 24, 2025. The Petitioner challenged this directive before the High Court.
Justice Valmiki Menezes examined the scope of revisional jurisdiction under Section 438 BNSS in the context of a proceeding that originated under Section 164 BNSS. The Court stated: "The Revisional Court has to, therefore, approach the entire matter and exercise its power of revision under Section 438 of the BNSS keeping in mind the nature of the original proceeding, which was a proceeding instituted for maintenance of public order and tranquillity."
It was further observed: "The Sessions Court ought to have been alive to the fact that the only jurisdiction vested in a Revisional Court exercising powers under Section 438 of the BNSS at the interim stage was to either grant a stay of the operation of the order impugned before it or to suspend that order. There was no other power to exercise at that stage."
The Court stated that the Executive Magistrate had already given a finding of possession in favour of the Petitioner. The Sessions Court, instead of adjudicating the revision on its merits, proceeded to allow temporary possession to the Respondents, which the High Court found beyond its statutory authority.
"Even entertaining any application for temporarily putting the Respondents in possession of the structure... would be contrary to the powers vested in the Sessions Court," Justice Menezes stated.
The Court further recorded that: "The Revisional Court ought to have attempted at finally disposing the Revision Application itself without entertaining any application that would change the status quo... contrary to the finding given by the Executive Magistrate."
The Court found that the order under challenge was not within the bounds of the Sessions Court’s jurisdiction. "The Sessions Court ought to have approached the entire matter by first being mindful of the scope of the original proceeding... which would then obviously not permit it to, at the interim stage, grant orders of the nature as the impugned order."
The High Court quashed the Sessions Court’s interim order dated July 23, 2025, stating: "For reasons stated above, the impugned order dated 23.07.2025 is quashed and set aside."
The Court further recorded: "Rule is made absolute in terms of prayer clause (A)."
It then directed the expeditious disposal of the pending revision application: "The Trial Court is requested to endeavour at disposing of Revision Application No.47/2013 as expeditiously as possible, considering that the subject matter of the Revision Application is one of law and order. The Revision Application shall be disposed of preferably by 20.08.2025."
Advocates Representing the Parties
For the Petitioner: Mr. S.S. Kantak, Senior Advocate with Mr. C. Angle and Ms. Neha Kholkar, Advocates
For the Respondents: Mr. Nigel da Costa Frias with Mr. Vishal Sawant and Mr. Vineet Surlakar, Advocates
Case Title: Shri Noberto Paulo Sebastiao Fernandes v. Shri Pankaj Vithal Tan Volvoikar & Ors.
Neutral Citation: 2025: BHC-GOA:1327
Case Number: Criminal Writ Petition No. 40 of 2025
Bench: Justice Valmiki Menezes
