[S.438 BNSS] Sessions Court Cannot Entertain An Issue Outside Scope Of Original Proceedings Under Revisional Jurisdiction: Bombay High Court

The Bombay High Court has held that a Sessions Court, while exercising its revisional jurisdiction under Section 438 of the Bharatiya Nagarik Suraksha Sanhita, 2023, cannot entertain applications or pass orders that alter the status quo regarding possession, particularly when the original proceedings pertain to maintenance of public order under Section 164 BNSS.

A single judge bench of Justice Valmiki Menezes was hearing a criminal writ petition challenging the Sessions Court's order permitting the respondents to temporarily enter and use a sealed structure for a religious festival, despite a subsisting order passed by the Sub-Divisional Magistrate (SDM) restraining them from entering the property and recognising the petitioner's possession.

The Sessions Court had allowed the application filed by the respondents in a pending Criminal Revision, directing the police to open the sealed premises for a specific period and allow the respondents to celebrate the Nagpanchami festival.

The High Court found that the Sessions Court had exceeded the jurisdiction conferred by Section 438 BNSS, which is limited to examining the legality of orders passed in subordinate criminal proceedings and to stay or suspend their operation.

It held that the Sessions Court could not pass interim orders that altered possession, especially when the original proceeding under Section 164 was limited to determining who was in possession for maintaining public peace and not for adjudicating ownership or tenancy claims.

“Considering the scope of the original proceeding under Section 164 of Cr.P.C., and that they were instituted for the purpose of maintaining peace and tranquillity [sic] in the area… the Sessions Court ought to have exercised revisional jurisdiction, keeping in mind the scope of the original proceeding… 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,” the court observed.

The respondent had also raised the objection that this is not a fit case to exercise the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, as the impugned order could not be termed to be illegal or contrary to the provisions of law.

The Court refuted the objection, observing that though the jurisdiction should be sparingly used, where Courts subordinate to the High Court have not acted within the bounds of their authority or their orders suffer from patent perversity, interference in the supervisory jurisdiction of the Court would be called for.

Hence, the High Court quashed the order and directed the Sessions Court to dispose of the revision application expeditiously.

Case Title: Shri. Noberto Paulo Sebastiao Fernandes v. Shri. Pankaj Vithal Tan Volvoikar & Ors. [Criminal Writ Petition No. 40 of 2025]

Click Here To Read/Download Order