Justice Valmiki Menezes, Bombay High Court, Goa
Revisional Court Ought To Be Mindful Of Scope Of Original Proceeding Before Entertaining Interim Applications During Pendency Of Revision: Bombay High Court
|The Court said the Revisional Court ought to be mindful of the scope of the original proceeding before entertaining interim applications during the pendency of the Revision Application.
The Bombay High Court has held that a Revisional Court, while exercising powers under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), ought to be mindful of the scope of the original proceeding before entertaining interim applications during the pendency of a Revision Application, and cannot grant interim relief allowing possession of a disputed structure in violation of a subsisting order under Section 164 BNSS passed by a Sub-Divisional Magistrate.
A Single Bench of Justice Valmiki S.A. Menezes observed, “...the Revisional Court ought to be mindful of the scope of the original proceeding before entertaining interim applications during the pendency of the Revision Application."
The Court added, "The Executive Magistrate was only required by the provisions of Section 164 of the BNSS to determine which party was in possession for the purpose of requiring one of the parties to be put to terms, in exercise of powers under Sub-Section 4 of Section 164 for maintaining of public order and tranquillity..”
Senior Advocate S.S. Kantak appeared for the Petitioner, while Advocate Nigel da Costa Frias represented the Respondents.
Brief Facts
The Petitioner had challenged an order of the Additional Sessions Judge, passed in a revision application under Section 438 of the BNSS. In the said order, the Revisional Court had allowed Respondents Nos 1 and 2 to open a sealed structure to celebrate the Nagpanchami festival and perform rituals within the premises.
Earlier, the Sub-Divisional Magistrate had directed the Respondents not to interfere with the possession of the Petitioner over the structure and had restrained both sides from entering the property except with police permission. This order had been passed under Section 164 of the BNSS (earlier Section 145 CrPC) based on a finding of possession in favour of the Petitioner.
During the pendency of the revision before the Sessions Court, an application was filed by the Respondents for temporary access to the sealed structure for the festival, which the Court allowed.
Reasoning of the Court
The Court noted that the impugned interim relief granted by the Sessions Court effectively altered the possession determination of the Sub-Divisional Magistrate and was beyond the scope of revisional powers.
The Court observed, “It is apparent that while entertaining and allowing the said application for interim relief, the learned Revisional Court has, in effect, altered the status of the property, which had been sealed and kept under the jurisdiction and possession of the Sub-Divisional Magistrate.”
The Court clarified that under Section 438 of BNSS, the Revisional Court’s interim jurisdiction is limited to suspending execution of an impugned order. It held, “The only power that could be exercised by the Revisional Court at the interim stage of such proceedings would be to direct that the execution of a sentence or an order be suspended until disposal of the Revision Application itself.”
It further stated, “The Revisional Court has no power to entertain any application for temporarily putting the Respondents in possession of the structure in dispute or for making use of such structure, contrary to the order of the Sub-Divisional Magistrate.”
The Court rejected the Respondents’ submission that the interim relief had been granted with consent, noting, “…there was no consent given by the Advocate for the Petitioner before the Sessions Court, has been filed by an Attorney of the Petitioner…The statements made in the affidavit to the effect that there was no consent given by the Advocate to the passing of the impugned order are disputed and that there was actual consent given by the Petitioners to the order, as was recorded in the impugned order itself.”
The Bench noted that the revisional power under Section 438 of the BNSS must be exercised in accordance with the nature of the original proceedings. He observed that since the matter originated under Section 146 CrPC (now Section 164 BNSS) concerning breach of peace and public tranquillity, the Sessions Court was bound to act within the framework of that provision. It added, “The Revisional Court would have to exercise this jurisdiction after being conscious of the scope of the original proceeding and act within the bounds of the powers conferred upon it under Section 438... which would obviously not permit it to, at the interim stage, grant orders of the nature as the impugned order.”
Accordingly, the High Court quashed the order of the Sessions Court and directed that the pending revision application be disposed of expeditiously, on or before August 20, 2025.
Cause Title: Noberto Paulo Sebastiao Fernandes v. Pankaj Vithal Tan Volvoikar & Ors. (Neutral Citation: 2025:BHC-GOA:1327)
Appearance
Petitioner: Senior Advocate S.S. Kantak; Advocates C. Angle, Neha Kholkar
Respondents: Public Prosecutor S.G. Bhobe; Advocates Nigel da Costa Frias, Vishal Sawant, Vineet Surlakar