Section 145 CrPC is Not a Forum to Litigate Title or Ownership – It is a Preventive Mechanism to Avert Breach of Peace: Bombay HC

"Possession is Proven by Acts, Not Just Paperwork" – Bombay High Court Restores Developer's Possession, Slams Revisional Court’s Technical Approach Under Section 145 CrPC. Bombay High Court, in a significant ruling, decisively reinstated an order passed by the Metropolitan Magistrate under Section 145 of the Code of Criminal Procedure, holding that the applicants were in actual possession of a disputed plot of land in Dahisar, Mumbai, and were unlawfully dispossessed through police action on 22 April 2017.

Setting aside the Sessions Court’s reversal of the Magistrate’s findings, Justice Amit Borkar emphatically held that "Section 145 proceedings are summary, preventive and aimed solely at protecting possession – not resolving title disputes or applying civil trial standards of evidence." The judgment reinstates the Magistrate’s direction to the Court Receiver to hand over possession to the developer, underlining the importance of maintaining public order by protecting settled possession.

"Magistrate is to Maintain Peace, Not Decide Ownership" – Court Reiterates Limited Scope of Section 145 CrPC

In the High Court’s words, "The object of Section 145 is not to adjudicate ownership or title, but to prevent breach of peace by identifying and protecting the party in actual possession." Justice Borkar further clarified that “even a trespasser in settled possession cannot be dispossessed otherwise than in accordance with law.”

The Court reaffirmed that the inquiry under Section 145 CrPC is not meant to mimic a civil suit, and technicalities of the Indian Evidence Act are not strictly applicable. It reminded that “documents with reasonable probative value, even if unregistered, can be considered”, especially when supported by visible and continuous acts of dominion over the property.

"Court Must Look at Conduct, Not Merely Claims": Possession Proved Through Chain of Events and Acts of Control

The High Court accepted the applicants' version that they had taken over physical possession from late K.N. Shaikh through a Deed of Assignment-cum-Surrender dated 10 December 2016, and registered sale deeds from the landowners in March 2017. The judgment noted that "the applicants paid consideration by cheque, deducted TDS, erected cabins, installed fencing, placed iron boards, deployed 19 security guards, and paid electricity and property taxes."

The Court emphasized, “Possession of an open plot is not shown by constructing walls, but by continuous and visible acts of control.” Photographs annexed in the charge sheet showing tin sheet fencing and cabins of the applicants further corroborated actual control on the date of dispute.

The Court stressed, “What matters is not the volume of oral evidence, but the consistency and chain of possession demonstrated through acts and documents.”

"Revisional Court Cannot Act as Appellate Court" – Sessions Court Overstepped Jurisdiction by Reappreciating Evidence

Justice Borkar came down heavily on the Sessions Court for “acting as an appellate court by reassessing the entire evidence and discarding documents on technical grounds.” He observed:

“The revisional court’s role is limited to jurisdictional or glaring legal errors – it cannot sit in appeal over the factual findings of the Magistrate supported by evidence.”

The Sessions Court had erroneously relied on the Bareilly Electricity Supply Co. judgment, applying rigid evidentiary rules inappropriate to summary preventive proceedings under Section 145 CrPC.

The High Court responded sharply: “Such an approach undermines the very object of Section 145 – the Magistrate is not expected to hold a mini-trial on ownership.”

"Hospitalization Does Not Invalidate Legal Acts" – Court Rejects Respondents' Objection on Physical Condition of Possession-Giver

Rejecting the respondent’s claim that late K.N. Shaikh could not have executed the deed of surrender due to hospitalization, the Court held: “The medical records show he was discharged before and re-admitted after the date of execution. There is no material to suggest incapacity on 10 December 2016.”

The Court also relied on the Advocate’s testimony and attesting witnesses, confirming the execution of the deed and delivery of possession to the applicants.

"Even If Document is Unregistered, It Can Still Show Possession" – High Court Clarifies Evidentiary Standards

The High Court clarified that possession letters or surrender deeds merely recording delivery of possession do not require registration under the Registration Act, unless they themselves operate to transfer title. The Court said:

“A document acknowledging delivery of possession is not a conveyance; it is relevant to assess actual control, and the Magistrate was right to consider it.”

The Court further held that “rigid exclusion of such documents on technical grounds is contrary to the summary nature of Section 145 proceedings.”

"Preliminary Order Under Section 145 Not Fatal When Inquiry is Directed by High Court"

The respondents contended that absence of a formal preliminary order under Section 145 rendered the proceedings void. The Court rejected this, stating:

“Where the Magistrate acts on a specific direction of the High Court confirmed by the Supreme Court, the procedural requirement of a separate preliminary order is deemed satisfied.”

The High Court found “substantive compliance” with Section 145, and held that technical lapses cannot defeat lawful directions of constitutional courts.

"Possession Must Be Protected to Maintain Public Order – Title Can Be Decided in Civil Courts"

Reiterating the classic principle underlying Section 145, the Court observed: “The person in settled possession, even if not the owner, cannot be dispossessed except in due course of law. Section 145 ensures protection of such possession to avoid violence and maintain law and order.”

The Court distinguished actual physical possession from constructive or legal possession and emphasized that “for the purpose of preventive justice, it is actual control that matters.”

The High Court allowed the revision, set aside the Sessions Court’s order dated 4 August 2022, and restored the Magistrate’s order of 21 December 2019, which had directed the Court Receiver to hand over possession of the land to the applicants.

Justice Borkar directed: “The Court Receiver shall complete the process of handing over possession upon payment of requisite charges by the applicants and take police assistance if required.”

The Court concluded by clarifying: “This judgment is confined only to the issue of possession under Section 145 CrPC. It does not prejudice any party’s rights in pending or future civil or criminal proceedings.”

The Court rejected the respondents’ plea for stay of the order, stating: “There is no justification for stay – the order restoring possession is based on evidence, not assumptions.”

Date of Decision: 16 September 2025