Bombay High Court: Absence Of Separate Preliminary Order By Magistrate Can’t Make Proceedings Invalid When HC Or SC Directed To Conduct Inquiry U/S 145 CrPC

The Bombay High Court held that when the High Court or Supreme Court has directed to conduct inquiry under Section 145 of the Criminal Procedure Code, 1973 (CrPC), the absence of a separate preliminary order by the Magistrate cannot make the proceedings invalid.

The Court was deciding a Criminal Revision Application preferred against the Order of the Additional Sessions Judge (ASJ), which set aside the Order of the Metropolitan Magistrate (MM).

A Single Bench of Justice Amit Borkar observed, “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 purpose of a preliminary order is only to show that the Magistrate is satisfied that there is a dispute requiring inquiry. Here, that satisfaction was already recorded by the High Court and confirmed by the Supreme Court. The Magistrate was therefore right in proceeding with the inquiry without issuing a separate formal order.”

The Bench reiterated that procedural requirements are meant to serve the cause of justice and they are not meant to defeat substantive directions of superior Courts.

Senior Advocate Girish Godbole appeared for the Applicants while Advocates Chaitanya Pendse and Rohan Sawant appeared for the Respondents. Senior Advocate Dinesh Purandare represented the interveners.

Brief Facts

The dispute in this case revolved around the possession of a large parcel of a land. The Petitioner-Romell Housing LLP claimed lawful possession of the land in dispute via registered Sale Deeds and payment of consideration amount. In 2017, the Respondent-Complainant informed the police about the alleged incident of dacoity, criminal trespass, and criminal trespass by the Petitioner and its associates. It was alleged that there was robbery of gold chain, cash, and electric generator. Hence, an FIR was registered under Sections 397, 447, 323, 504, 506(1), 34, 143, 144, and 148 of the Indian Penal Code, 1860 (IPC). The Applicants-accused were arrested and taken into custody. They pointed out that the panch witnesses were not independent but were servants and employees of the Complainant.

They Applicants were alleged to have forcibly deprived of possession and hence, a chargesheet was filed. Thereafter, the High Court allowed Bail Application of the accused and the Applicants then filed a Criminal Writ Petition essentially seeking action against the concerned police officers for their role in the incident. Subsequently, the investigation was transferred to the CBI (Central Bureau of Investigation). In 2019, the MM delivered the final Judgment and recorded a clear finding that the Applicants were in possession of the land. This was challenged by the Respondent before the Sessions Court, which allowed his Revision Application and set aside MM’s Order. Being aggrieved, the Applicants were before the High Court.

Reasoning

The High Court in view of the facts and circumstances of the case, noted, “To hold that the Magistrate’s inquiry is void merely because a preliminary order was not separately drawn would be adopting an overly technical view. What matters is the substance. The Magistrate heard both sides, considered their evidence, and recorded findings on possession as required by law.”

The Court added that the contention that the proceedings are bad in law for want of a preliminary order has no merit and that the Magistrate’s inquiry was validly held under binding judicial directions, and the findings recorded therein cannot be faulted on this ground.

“The scope of revisional jurisdiction is clearly laid down in law. A revisional Court is not to act like an appellate Court. It cannot re-examine the entire evidence as if it were deciding the case on merits afresh. Its powers are limited. It can interfere only to correct jurisdictional errors, errors that are apparent on the face of the record, or findings which are perverse because they ignore important evidence or are based on a wrong principle of law. The idea is that a revisional Court does not sit in appeal but only ensures that the subordinate Court has acted within its bounds and has not committed glaring errors”, it elucidated.

The Court remarked that in this case, the Sessions Court crossed limits and instead of checking whether the Magistrate’s Order suffered from any legal infirmity, it reassessed the evidence in detail and replaced the Magistrate’s findings with its own view.

“In doing so, it overlooked the very object of Section 145 proceedings. The purpose of Section 145 is not to decide ownership or to apply strict rules of evidence but to quickly determine who was in possession so that breach of peace is avoided. The Sessions Court, however, applied rigid standards of admissibility, discarded documents that had already been verified and exhibited, and ignored the preventive nature of the inquiry”, it said.

The Court emphasised that once the Magistrate had already considered the documents, oral testimony, and surrounding circumstances and drawn a reasonable conclusion, there was no valid ground for the Sessions Court to interfere and its interference was, therefore, clearly unwarranted.

“I further direct the Court Receiver to hand over physical possession of the said land to the applicants strictly in accordance with the order of the learned Metropolitan Magistrate. The applicants shall first pay the charges of the Court Receiver as assessed by that office. Once such payment is made, the Court Receiver shall complete the process of handing over possession without any delay”, it further directed.

Conclusion

The Court also ordered that the Court Receiver shall take police assistance, if needed, to ensure peaceful execution of the Order and to prevent any obstruction.

“The respondents are directed to extend full cooperation to the Receiver and not to interfere in the process of handing over possession. … Lastly, it is clarified that the investigation by the CBI and any criminal trial shall go on unaffected by this order”, it concluded.

Accordingly, the High Court allowed the Revision Application, set aside the ASJ’s Order, and restored that of MM.

Cause Title- Romell Housing LLP & Anr. v. Sameer Salim Shaikh & Ors. (Neutral Citation: 2025:BHC-AS:38356)

Appearance:

Applicants: Senior Advocate Girish Godbole, Advocates Drupad Patil, and Dheeraj D. Patil.

Respondents: Advocates Chaitanya Pendse, Rohan Sawant, Atharva S. Jagtap, Rajashree V. Newton, and Laxman Jain.

Click here to read/download the Judgment