PARTAP SINGH vs RANJIT SINGH AND ANR

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High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 1320 of 2024
Reserved on: 21.08.2026
Decided on: 07.09.2026
Pratap Singh …. Petitioner
Versus
Ranjit Singh & Another …. Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge.
1
Whether approved for reporting? Yes
For the Petitioner : Mr Janesh Gupta, Advocate.
For Respondent No.1 : Mr Ajay Kumar Lahota, Advocate.
For Respondent No.2/State : Mr Prashant Sen, Deputy
Advocate General.
Rakesh Kainthla, Judge
The present petition is directed against the order dated
14.12.2023 passed by the learned Additional Sessions Judge, CBI
Court, Shimla (learned Revisional Court), vide which the order
passed by the learned Sub-Divisional Magistrate (Rural), District
Shimla (learned Trial Court) dated 17.07.2023 was upheld. ( The
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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parties shall hereinafter be referred to in the same manner as they were
arrayed before the learned Trial Court for convenience ).
2. Briefly stated, the facts giving rise to the present
petition are that the petitioner/informant complained to the police
that he and his brothers had occupied the ancestral house as per the
family arrangement. The informant and his brothers constructed
their houses near the ancestral house. Their courtyard was located
adjacent to the ancestral house, which was jointly owned and
possessed by the parties. The informant constructed a drain to
discharge the water, which was covered by Ranjeet Singh. The
water from the courtyard and rainwater seeped through the
informant's house. Ranjeet Singh constructed iron stairs, which
blocked the passage to the informant's house. The informant
constructed a staircase to enter his house. However, Ranjeet Singh
started tethering his cattle, which damaged the stairs. The
informant was unable to reach his house. Ranjeet Singh put cow
dung near his house, which created filth. The informant talked to
Ranjeet Singh about his difficulties, but Ranjeet Singh was not
ready to listen to the informant and used to abuse the informant.
There was an apprehension of breach of peace. Hence, the matter
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was reported to the police, who filed a complaint before the
Learned Trial Court.
3. The Learned Court initiated the proceedings under
Section 145 of the Code of Criminal Procedure (Cr.P.C.). Report of
the Tehsildar was called, and it was found that there was no
apprehension or breach of peace, and the informant wanted to take
possession by taking recourse to Section 145 of the Cr.P.C. The
dispute was of a civil nature, and the informant had civil remedies
available to him. Therefore, the learned Trial Court dropped the
proceedings.
4. The informant filed a revision, which was decided by the
learned Additional Session Judge-2, District Shimla, who held that
the learned Trial Court was not justified in dropping the
proceedings without allowing the parties to prove their case by
leading evidence. Therefore, the matter was remanded to the
learned Trial Court for a fresh decision as per the law.
5. The learned Trial Court recorded the statements and
held that the parties were in joint possession. The iron stairs were
located on the side of the land. There was no evidence that the
informant was in possession two months before making the
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complaint to the police. The dispute was regarding the movable
property and not the immovable property. There was no
apprehension of breach of peace. The informant had a remedy of
approaching the Civil Court. Hence, the complaint was dismissed.
6. Being aggrieved by the order passed by the learned Trial
Court, the informant filed a revision which was decided by the
Learned Additional Sessions Judge, CBI Court, Shimla District,
Shimla (the learned Revisional Court). The learned Revisional Court
concurred with the findings recorded by the learned Trial Court that
the informant was not proved to be in possession of the land 2
months before the institution of the complaint. The learned Trial
Court erred in holding that the dispute pertained to movable
property. Iron stairs were affixed to the land and formed part of the
land. Therefore, they would fall within the definition of immovable
property. The proceedings could have been initiated under Section
147 of the CrPC, but for that, the informant should have been in
possession 3 months before the filing of the complaint. No fruitful
purpose would be served by remanding the matter to the learned
trial Court. Hence, the revision was dismissed.
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7. Being aggrieved by the judgment and order passed by
the learned Courts below, the informant has filed the present
petition, asserting that the learned Trial Court erred in holding that
the iron staircase was not causing any hindrance to the ingress and
egress to the informant's property. The respondent acted to grab a
portion of the informant's property. He created a situation in which
the informant's access to his house was blocked, and a nuisance
was created. Actual breach of peace does not mean that there
should be a scuffle or a physical fight. The likelihood of the breach
of peace is sufficient to confer jurisdiction upon the learned
Magistrate. The informant is entitled to use his property without
any interference from any person. Section 145 of the CrPC does not
contemplate actual dispossession. The acts of the respondent
showed that the informant was dispossessed from the land.
Therefore, it was prayed that the present petition be allowed and
the judgment and order passed by the learned courts below be set
aside.
8. I have heard Mr Janesh Gupta, learned counsel for the
petitioner, Mr Ajay Kumar Lahota, learned counsel for respondent
no. 1, and Mr Prashant Sen, learned Deputy Advocate General for
respondent no. 2.
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9. Mr Janesh Gupta, learned counsel for the petitioner,
submitted that the learned Courts below erred in dismissing the
complaint. The material on record shows that access to the
informant's house was blocked. Respondent no. 1 created a
nuisance by putting cow dung near his house. The cattle damaged
the stairs leading to the informant's house. The respondent no. 1
forcibly wants to dispossess the informant from the land. The
informant has a right to protect his property and his person from
unlawful threats. Hence, he prayed that the present petition be
allowed and the judgment and order passed by learned Courts
below be set aside.
10. Mr Ajay Kumar Lahota, learned counsel for respondent
no. 1, submitted that the learned Courts below have rightly held
that necessary ingredients for attracting Section 145 of Cr.P.C. are
not satisfied. There is no proof that the informant was in
possession of the property 2 months before the filing of the
complaint, and the learned Trial Court had no jurisdiction in the
present matter. There is no necessity to exercise the inherent
jurisdiction vested in the court. Hence, he prayed that the present
petition be dismissed.
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11. Mr Prashant Sen, learned Deputy Advocate General for
the respondent no. 1/State, submitted that the learned Courts below
had rightly appreciated the material on record and there is no
infirmity in the judgment and order passed by them; hence he
prayed that the present petition be dismissed.
12. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
13. The present petition has been filed under Section 528 of
BNSS (corresponding to Section 482 of CrPC) against an order
dismissing the revision petition. It was laid down by the Hon’ble
Supreme Court in Krishnan Vs. In Krishnaveni (1997) 4 SCC 241, the
High Court can intervene under Section 482 of CrPC (corresponding
to Section 528 of BNSS) when there is a grave miscarriage of justice
or abuse of the process of the Court. It was observed:
“10. Ordinarily, when revision has been barred by Section
397(3) of the Code, a person — accused/complainant — can-
not be allowed to take recourse to the revision to the High
Court under Section 397(1) or inherent powers of the High
Court under Section 482 of the Code since it may amount to
circumvention of the provisions of Section 397(3) or Section
397(2) of the Code. It is seen that the High Court has suo motu
power under Section 401 and continuous supervisory juris-
diction under Section 483 of the Code. So, when the High
Court on examination of the record finds that there is a grave
miscarriage of justice or abuse of the process of the courts or
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the required statutory procedure has not been complied with
or there is failure of justice or order passed or sentence im-
posed by the Magistrate requires correction, it is but the duty
of the High Court to have it corrected at the inception lest
grave miscarriage of justice would ensue. It is, therefore, to
meet the ends of justice or to prevent abuse of the process
that the High Court is preserved with inherent power and
would be justified, under such circumstances, to exercise the
inherent power and, in an appropriate case, even revisional
power under Section 397(1) read with Section 401 of the
Code. As stated earlier, it may be exercised sparingly to avoid
needless multiplicity of procedure, unnecessary delay in trial
and protraction of proceedings. The object of a criminal trial
is to render public justice, to punish the criminal and to see
that the trial is concluded expeditiously before the memory
of the witness fades out. The recent trend is to delay the trial
and threaten the witness or to win over the witness by prom-
ise or inducement. These malpractices need to be curbed, and
public justice can be ensured only when the trial is conducted
expeditiously.
11. In Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551:
1978 SCC (Cri) 10], a three-judge Bench was to consider the
scope of the power of the High Court under Section 482 and
Section 397(2) of the Code. This Court held that the bar on
the power of revision was put to facilitate expedient disposal
of the cases, but in Section 482, it is provided that nothing in
the Code, which would include Section 397(2) also, shall be
deemed to limit or affect the inherent powers of the High
Court. On a harmonious construction of the said two provi-
sions on this behalf, it was held that though the High Court
has no power of revision in an interlocutory order, still the
inherent power will come into play when there is no provi-
sion for redressal of the grievance of the aggrieved party. In
that case, when allegations of defamatory statements were
published in the newspapers against the Law Minister, the
State Government decided to prosecute the appellant for an
offence under Section 500 IPC. After obtaining the sanction,
on a complaint made by the public prosecutor, cognisance of
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the commission of the offence by the appellant was taken to
trial in the Sessions Court. Thereafter, the appellant filed an
application to dismiss the complaint on the ground that the
court had no jurisdiction to entertain the complaint. The
Sessions Judge rejected all the contentions and framed the
charges under Section 406. The Order of the Sessions Judge
was challenged in revision in the High Court. On a prelimi-
nary objection raised on maintainability, this Court held that
the power of the High Court to entertain the revision was not
taken away under Section 397 or the inherent power under
Section 482 of the Code.
12. In V.C. Shukla v. State through CBI [1980 Supp SCC 92: 1980
SCC (Cri) 695: (1980) 2 SCR 380] (SCR at p. 393), a four-judge
Bench, by majority, held that sub-section (3) of Section 397,
however, does not limit at all the inherent powers of the
High Court contained in Section 482. It merely curbs the re-
visional power given to the High Court or the Sessions Court
under Section 397(1) of the Code. In the Rajan Kumar
Machananda case [1990 Supp SCC 132: 1990 SCC (Cri) 537], the
case related to the release of a truck from attachment, obvi-
ously on the filing of an interlocutory application. It was
contended that there was a prohibition on the revision by
operation of Section 397(2) of the Code. In that context, it
was held that it was not reviewable under Section 482 in the
exercise of inherent powers by operation of sub-section (3)
of Section 397. On the facts in that case, it was held that by
provisions contained in Section 397(3), the revision is not
maintainable. In the Dharampal case [(1993) 1 SCC 435: 1993
SCC (Cri) 333], which related to the exercise of power to issue
an order of attachment under Section 146 of the Code, it was
held that the inherent power under Section 482 was prohib-
ited. On the facts, in that case, it could be said that the
learned Judges would be justified in holding that it was not
revisable since it was a prohibitory interim order of attach-
ment covered under Section 397(2) of the Code but the ob-
servations of the learned Judges that the High Court had no
power under Section 482 of the Code were not correct in view
of the ratio of this Court in Madhu Limaye case [(1977) 4 SCC
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551: 1978 SCC (Cri) 10 ] as upheld in V.C. Shukla case [1980 Supp
SCC 92: 1980 SCC (Cri) 695 : (1980) 2 SCR 380] and also in view
of our observations stated earlier. The ratio in the Deepti case
[(1995) 5 SCC 751: 1995 SCC (Cri) 1020] is also not apposite to
the facts in the present case. To the contrary, in that case, an
application for discharge of the accused was filed in the
Court of the Magistrate for an offence under Section 498-A
IPC. The learned Magistrate and the Sessions Judge dis-
missed the petition. In the revision at the instance of the ac-
cused, on a wrong concession made by the counsel appearing
for the State that the record did not contain allegations con-
stituting the offence under Section 498-A, the High Court,
without applying its mind, had discharged the accused. On
appeal, this Court, after going through the record, noted that
the concession made by the counsel was wrong. The record
did contain the allegations to prove the charge under Section
498-A IPC. The High Court, since it failed to apply its mind,
had committed an error of law in discharging the accused,
leading to the miscarriage of justice. In that context, this
Court held that the order of the Sessions Judge operated as a
bar to entertain the application under Section 482 of the
Code. In view of the fact that the order of the High Court had
led to the miscarriage of justice, this Court had set aside the
order of the High Court and confirmed that of the Magistrate.
13. The ratio of the Simrikhia case [(1990) 2 SCC 437: 1990 SCC
(Cri) 327] has no application to the facts in this case. Therein,
on a private complaint filed under Sections 452 and 323 IPC,
the Judicial Magistrate, First Class, had taken cognisance of
the offence. He transferred the case for inquiry under Section
202 of the Code to the Second-Class Magistrate, who, after
examining the witnesses, issued a process to the accused.
The High Court, exercising the power under Section 482, dis-
missed the revision. But subsequently, on an application filed
under Section 482 of the Code, the High Court corrected it.
The question was whether the High Court was right in re-
viewing its order. In that factual backdrop, this Court held
that the High Court could not exercise inherent power for the
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second time. The ratio therein, as stated above, has no appli-
cation to the facts in this case.
14. In view of the above discussion, we hold that though the
revision before the High Court under sub-section (1) of Sec-
tion 397 is prohibited by sub-section (3) thereof, inherent
power of the High Court is still available under Section 482 of
the Code and as it is paramount power of continuous super-
intendence of the High Court under Section 483, the High
Court is justified in interfering with the order leading to mis-
carriage of justice and in setting aside the order of the courts
below. It remitted the case to the Magistrate for a decision on
the merits after consideration of the evidence. We make it
clear that we have not gone into the merits of the case. Since
the High Court has left the matter to be considered by the
Magistrate, it would be inappropriate at this stage to go into
that question. We have only considered the issue of power
and jurisdiction of the High Court in the context of the revi-
sional power under Section 397(1) read with Section 397(3)
and the inherent powers. We do not find any justification
warranting interference in the appeal.”
14. This position was reiterated in Rajinder Prasad v. Bashir,
(2001) 8 SCC 522 , wherein it was held:
“…though the power of the High Court under Section 482 of
the Code is very wide, the same must be exercised sparingly
and cautiously, particularly in a case where the petitioner is
shown to have already invoked the revisional jurisdiction
under Section 397 of the Code. Only in cases where the High
Court finds that there has been a failure of justice or misuse
of judicial mechanism or procedure, or that a sentence or
order was not correct, the High Court may, in its discretion,
prevent the abuse of the process or miscarriage of justice by
exercise of jurisdiction under Section 482 of the Code. It was
further held, “Ordinarily, when revision has been barred by
Section 397(3) of the Code, a person - accused/complainant
- cannot be allowed to take recourse to the revision to the
High Court under Section 397(1) or inherent powers of the
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High Court under Section 482 of the Code since it may
amount to circumvention of provisions of Section 397(3) or
Section 397(2) of the Code.”
15. A similar view was taken in Kailash Verma v. Punjab State
Civil Supplies Corporation, (2005) 2 SCC 571 , and it was held:
“5. It may also be noticed that this Court in Rajathi v. C.
Ganesan [(1999) 6 SCC 326: 1999 SCC (Cri) 1118 ] said that the
power under Section 482 of the Criminal Procedure Code has
to be exercised sparingly and such power shall not be utilised
as a substitute for second revision. Ordinarily, when a
revision has been barred under Section 397(3) of the Code,
the complainant or the accused cannot be allowed to take
recourse to revision before the High Court under Section
397(1) of the Criminal Procedure Code, as it is prohibited
under Section 397(3) thereof. However, the High Court can
entertain a petition under Section 482 of the Criminal
Procedure Code when there is a serious miscarriage of justice
and abuse of the process of the court or when mandatory
provisions of the law are not complied with and when the
High Court feels that the inherent jurisdiction is to be
exercised to correct the mistake committed by the revisional
court.”
16. This position was reiterated in Shakuntala Devi v.
Chamru Mahto , (2009) 3 SCC 310: (2009) 2 SCC (Cri) 8: 2009 SCC On-
Line SC 292 , wherein it was observed: -
“24. It is well settled that the object of the introduction of
sub-section (3) in Section 397 was to prevent a second revi-
sion to avoid frivolous litigation, but, at the same time, the
doors to the High Court to a litigant who had lost before the
Sessions Judge were not completely closed, and in special
cases, the bar under Section 397(3) could be lifted. In other
words, the power of the High Court to entertain a petition
under Section 482 was not subject to the prohibition under
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sub-section (3) of Section 397 of the Code and was capable of
being invoked in appropriate cases. Mr Sanyal's contention
that there was a complete bar under Section 397(3) of the
Code, debarring the High Court from entertaining an appli-
cation under Section 482 thereof, does not, therefore, com-
mend itself to us.
25. On the factual aspect, the Magistrate came to a finding
that the appellants were entitled to possession of the dis-
puted plot. It is true that while making such a declaration
under Section 145(4) of the Code, the Magistrate could have
also directed that the appellants be put in possession of the
same.
26. The question which is now required to be considered is
whether the High Court was right in quashing the order
passed by the Magistrate, which was confirmed by the Ses-
sions Judge, on the ground that the application made by the
appellants under Section 145(6) of the Code was barred
firstly by limitation under Article 137 of the Limitation Act
and also by virtue of Section 6 of the Specific Relief Act, 1963.
17. Delhi High Court also took a similar view in Surender
Kumar Jain v. State, ILR (2012) 3 Del 99 and held: —
“5. The issue regarding the filing of a petition before the
High Court after having availed the first revision petition
before the Court of Sessions has come up before the Supreme
Court and this Court repeatedly. While laying that section
397(3) Cr. P.C. laid the statutory bar to the second revision
petition, the courts have held that the High Court did enjoy
inherent power under section 82 (sic) Cr. P.C. as well to
entertain petitions even in those cases. But that power was to
be exercised sparingly and with great caution, particularly
when the person approaching the High Court has already
availed a remedy of first revision in the Sessions Court. This
was not that in every case the person aggrieved by the order
of the first revision court would have the right to be heard by
the High Court to assail the same order which was the subject
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matter of the revision before the Sessions Court. It all
depends not only on the facts and circumstances of each case
but also on whether the impugned order brought about a
situation that is an abuse of the process of the court, there
was a serious miscarriage of justice or the mandatory
provisions of law were not complied with. The power could
also be exercised by this Court if there was an apparent
mistake committed by the revisional court. Reference in this
regard can be made to the judgments of the Supreme Court i n
Madhu Limave v. State of Maharashtra (1977) 4 SCC 551, State
of Orissa v. Ram Chander Aggarwal, (1979) 2 SCC 305: AIR 1979
SC 87, Rai Kapoor v. State (Delhi Administration) 1980 Cri LJ
202, Krishnan v. Krishnaveni and Kailash Verma v. Punjab State
Civil Supplies Corporation (2005) 2 SCC 571 .”
18. It is apparent from the judgments that the High Court
has a limited jurisdiction, and it can rectify a serious miscarriage of
justice or a breach of a mandatory provision of law while exercising
its jurisdiction under Section 528 of BNSS corresponding to Section
482 of Cr.P.C.
19. Section 145(4) of CrPC reads as under:
The Magistrate shall then, without reference of the merits or
the claims of any of the parties to a right to possess the
subject of dispute, peruse the statements so put in, hear the
parties, receive all such evidence as may be produced by
them, take such further evidence, if any, as he thinks
necessary, and, if possible, decide whether any and which of
the parties was, at the date of the order made by him under
sub-section (1), in possession of the subject of dispute :
Provided that if it appears to the Magistrate that any party
has been forcibly and wrongfully dispossessed within two
months next before the date on which the report of a police
officer or other information was received by the Magistrate,
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or after that date and before the date of his order under sub-
section (1), he may treat the party so dispossessed as if that
party had been in possession on the date of this order under
sub-section (1).
20. It is apparent from the perusal of the section that the
person complaining of dispossession should have been
dispossessed within 2 months before making the complaint. It was
laid down by the Hon'ble Supreme Court in R.C. Patuck v. Fatima A.
Kindasa, (1997) 5 SCC 334: 1997 SCC (Cri) 679 that where there was no
evidence that the informant was in possession two months before
filing the complaint, the Magistrate had no jurisdiction under
Section 145 of the CrPC. It was observed at page 338:
“9. It will be seen from the facts stated above that the order
under Section 145(1) was passed by the learned Magistrate on
16-3-1993. The question is whether the Magistrate could
have passed any order in favour of the petitioner under sub-
section (4) of Section 145. Going by the main sub-clause (4)
of Section 145, it is clear that the Magistrate could initially
decide who was in possession as on the date when the order
under Section 145(1) was passed on 16-3-1993. In cases
where the proviso to the said sub-clause (4) applied, that is,
if it appeared to the Magistrate that any party had been
forcibly and wrongfully dispossessed, within two months
next before the date on which the report of a police officer or
other information was received by the Magistrate, or after
that date and before the date of his order under sub-section
(1), the Magistrate might treat the party so dispossessed as if
the said party had been in possession on the date of his order
under sub-section (1). In other words, if the conditions
mentioned in the proviso to sub-section (4) were satisfied,
the Magistrate could deem a person to be in possession as on
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the date of the order under Section 145(1) notwithstanding
the fact that he was not in fact in possession on that date, but
lost possession earlier, within two months next before the
order. In this case, unfortunately, there is no material to
show that any report of a police officer or other information
was received by the Magistrate within the period
contemplated by the proviso. On the other hand, the
petitioner's admissions show that she lost possession much
before the period mentioned in the said proviso.”
21. In the present case, the informant asserted in para 2 of
the written statement filed before the learned trial Court that he
was unable to cultivate his fields or visit his residence since 2018.
He asserted in para 4 that the respondent had dumped cow dung in
the backyard of the informant's kitchen and obstructed and created
a nuisance since 2018. The respondents created several obstacles
since 2018.
22. These averments clearly show that the informant was
dispossessed in the year 2018. The police filed the complaint before
the learned Trial Court on 14.05.2019, and the period of more than 2
months had elapsed since the date of dispossession. Therefore, the
learned Trial Court had rightly concluded that the necessary
conditions for attracting Section 145 of the CrPC were not satisfied.
23. Therefore, the learned Trial Court had taken a
reasonable view while dismissing the complaint, and the learned
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Revisional Court had rightly upheld the same. No interference is
required with the judgment and order passed by the learned courts
below while exercising the inherent jurisdiction of the court.
24. No other point was urged.
25. In view of the above, the present petition fails and is
dismissed.
(Rakesh Kainthla)
Judge
th
7 September, 2026
(Nikita)
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