'Magistrate Not Required To Pass Preliminary Order U/S 145 CrPC When Inquiry Is Directed By HC Or SC': Bombay High Court

The Bombay High Court has held that where an inquiry under Section 145 of the Code of Criminal Procedure [Section 164 in the BNSS] is specifically directed by the High Court or the Supreme Court, the Magistrate is not required to pass a separate preliminary order under Section 145(1).

The Court observed that in such cases, the satisfaction as to the existence of a dispute likely to cause breach of peace is already recorded by the higher court, and the Magistrate's duty is limited to conducting the inquiry as directed.

Justice Amit Borkar was hearing a criminal revision application filed by Romell Housing LLP and its partner Jude Romell, challenging the order dated 4 August 2022 passed by the Additional Sessions Judge, which had set aside the Metropolitan Magistrate's order under Section 145 CrPC. The Magistrate had earlier, by order dated 21 December 2019, held that the applicants were in possession of the disputed land at Dahisar and directed the Court Receiver to hand over possession to them. The Sessions Court, however, set aside the order.

The Court noted that proceedings under Section 145 CrPC are summary and preventive in nature, aimed at maintaining peace and public order, and not at adjudicating title disputes. The Magistrate is entitled to act on material having reasonable probative value and is not bound by strict technical rules of evidence. It observed:

“The technical rules of evidence should not stop the Magistrate from considering documents or materials which have probative value. The Magistrate must make a practical assessment of possession based on all available sources… The Magistrate is expected to decide swiftly, using a practical and common-sense approach, and not get entangled in technicalities meant for civil trials.”

The Court observed that the Sessions Court wrongly applied rigid standards of admissibility and re-assessed the evidence as if conducting a civil trial, thereby exceeding its revisional jurisdiction. The Court noted that the Magistrate had correctly assessed both documentary and oral evidence.

On rejection of the document for non-registration by the Sessions Court, the Court observed that the proceedings under Section 145 Cr.P.C. are not about deciding ownership; the inquiry is only into actual possession, for which even unregistered documents can be looked into as evidence of conduct and possession.

On the argument of non-issuance of preliminary order by the Magistrate, the Court observed that the Division Bench of the High Court had expressly directed the Magistrate to hold an inquiry under Section 145 CrPC to determine who was in possession of the property on 22 April 2017 and whether any party was forcibly dispossessed within two months before that date. The Supreme Court had also affirmed this direction. In such circumstances, the Magistrate was not required to again issue a preliminary order, since the very object of such an order, to record satisfaction about the dispute, was already fulfilled by the higher courts' directions.

“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 observed.

Accordingly, the Court set aside the Sessions Court's order and restored the Magistrate's order of 21 December 2019 directing the Court Receiver to hand over possession of the property to the applicants.

Case Title: Romell Housing LLP & Anr. v. Sameer Salim Shaikh & Ors. [Criminal Revision Application No. 108 of 2023]

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