Judicial Magistrates Lack Jurisdiction To Adjudicate Possession Of Immovable Property Under Police Act; 'Property' Refers Only To Movables: Calcutta High Court

"Provisions of the Police Act cannot be invoked to divest a person from possession of immovable property or to assist another person in obtaining possession thereof," Calcutta High Court, in a significant ruling, held that Judicial Magistrates lack the jurisdiction to direct the handing over of keys or interim possessory control of immovable property under the Police Act, 1861.

A single bench of Justice Kausik Chanda observed that the term "property" within the ambit of Sections 25 and 26 of the Police Act is strictly confined to movable property, money, or valuable security. The Court emphasized that any attempt by a criminal court to adjudicate civil possessory rights over immovable property under the guise of the Police Act constitutes a jurisdictional nullity.

The case originated following the death of one Nirmalya Sasmal in 2012, after which the Tollygunge police locked his premises to prevent trespass. A dispute arose between the petitioner, claiming to be the deceased's step-brother, and the opposite party, claiming to be the son, over the custody of the keys. The Chief Judicial Magistrate (CJM), Alipore, directed the police to hand over the keys to the opposite party, an order later affirmed by the Sessions Court, leading to the present revisional application.

The primary questions before the Court were whether the expression "Magistrate of the district" in the Police Act includes a Judicial Magistrate and whether the Act empowers such authorities to deal with immovable property. The Court was also called upon to determine if a criminal court can summarily decide interim possessory rights between rival claimants to a deceased person's estate.

Separation Of Judicial And Executive Magistracy Under The CrPC

The Court began by analyzing the definition of "Magistrate of the district" as provided in the interpretation clause of the Police Act, 1861. It noted that the definition identifies the authority as the chief officer charged with the executive administration of a district, which corresponds exclusively to the executive magistracy. A Judicial Magistrate, the Court reasoned, neither performs executive administration nor heads the district administration.

Referring to Section 3(4) of the Code of Criminal Procedure, 1973, the bench highlighted the deliberate statutory separation between judicial and executive functions. The Court observed that while every "Magistrate of the district" is a Magistrate in the generic sense, not every Magistrate qualifies as "the Magistrate of the district" for the purposes of administrative or executive functions.

"To construe a Judicial Magistrate as 'the Magistrate of the district' would obliterate the deliberate statutory separation between judicial and executive magistracy recognised in subsection (4)."

Statutory Scope Of 'Property' Under The Police Act

Justice Chanda further scrutinized the definition of "property" under the Police Act, noting it specifically includes "any movable property, money or valuable security." The bench found substantial force in the petitioner’s contention that Sections 25 and 26 do not empower any Magistrate to deal with immovable assets. The Court relied on precedents from the Rajasthan and Madhya Pradesh High Courts to reinforce that these provisions are essentially preventive and administrative, not adjudicatory.

The bench held that the entire statutory scheme of the Police Act contemplates executive supervision over the temporary preservation and disposal of unclaimed movable property. It categorically stated that the provisions cannot be invoked to divest a person of immovable property or assist another in obtaining its possession.

"The decision rendered in Chhutanlal Vs. State categorically held that the word 'property' under the Police Act is confined to movable property and does not include immovable property."

Role Of West Bengal Escheats And Forfeitures Act, 2012

Addressing the question of how unclaimed immovable property should be handled, the Court pointed towards the West Bengal Escheats and Forfeitures Act, 2012. This special statute, founded upon Article 296 of the Constitution of India, deals with the management and disposal of property vested in the State by escheat or as bona vacantia. Under this Act, the "competent authority" is empowered to conduct enquiries and the Collector of the District takes charge of the property.

The Court noted that the police, upon securing the premises in 2012 to prevent theft, should have resorted to the provisions of the 2012 Act rather than approaching a Judicial Magistrate. However, since the property was no longer "unclaimed" due to the rival claims of the parties, the matter had moved into the realm of civil litigation.

Criminal Courts Prohibited From Deciding Civil Title Disputes

The High Court reprimanded the lower courts for transgressing jurisdictional boundaries by effectively recognizing interim possessory rights "for use" of a party. Justice Chanda observed that questions relating to title, inheritance, and succession are matters eminently triable by civil courts upon the appreciation of evidence and cannot be decided summarily in criminal proceedings.

The bench also rejected the argument that Sections 457 to 459 of the CrPC validated the Magistrate’s order. It clarified that these sections apply to property seized in connection with an offence, whereas the present case involved no such seizure. The Court reiterated that Chapter XXXIV of the Code cannot be interpreted to permit criminal courts to adjudicate civil possession between rival claimants.

"The criminal court, under the guise of preserving property, cannot determine civil rights relating to title, succession or possession."

Jurisdictional Defects Cannot Be Cured By Participation

The Court dismissed the submission that the petitioner's participation in the lower court proceedings validated the orders. Citing the Supreme Court in Kiran Singh Vs. Chaman Paswan, the bench held that a defect relating to subject matter jurisdiction strikes at the root of the court's authority. An order passed without jurisdiction is a nullity in the eye of law and its invalidity can be questioned at any stage.

The bench concluded that the CJM acted wholly without jurisdiction and the Appellate Court failed to appreciate this fundamental infirmity. Consequently, the Court set aside both the impugned orders and directed the opposite party to restore the keys to the police within seven days.

Restoration Of Status Quo And Referral To Civil Court

In its final directions, the Court ordered the Officer-in-Charge of the Tollygunge Police Station to prepare a detailed inventory of the articles at the premises in the presence of both parties. The police were directed to retain custody of the keys solely as a "neutral custodian" for the purpose of maintaining peace, without conferring any rights on either party.

The Court made it clear that it had not adjudicated upon the title or succession of the property. All such questions were left open for determination by a competent civil court through appropriate reliefs such as declaration, injunction, partition, or probate.

Date of Decision: 22 May 2026