Section 164 BNSS proceedings cannot be invoked to dispossess a party in established actual possession.

The applicant, a widow and owner of a property in Gonda, alleged that the opposite party nos. 2 and 3 (O.P.s) were illegally attempting to encroach upon a shop within her premises

Based on a police report citing a potential breach of peace due to the possession dispute, the City Magistrate, Gonda, initiated proceedings under Section 164 of the Bhartiya Nagrik Suraksha Sanhita (BNSS) and subsequently ordered the attachment of the shop under Section 165 BNSS on 24.10.2024

The O.P.s, claiming to be long-term tenants who had already filed a civil suit for permanent injunction (Civil Suit No. 1459 of 2024), challenged this in the Revisional Court

The Revisional Court set aside the Magistrate’s attachment order on 01.11.2025

The applicant then moved the High Court under Section 482 BNSS to challenge the Revisional Court's order

1. Whether the Executive Magistrate has jurisdiction to initiate attachment proceedings under Sections 164 and 165 of the BNSS when one party is in admitted actual possession of the property

2. Whether proceedings under Sections 164/165 BNSS (akin to Sections 145/146 CrPC) can be used to evict a tenant when a civil suit regarding the same property is pending

The court primarily applied Sections 164 and 165 of the Bhartiya Nagrik Suraksha Sanhita (BNSS), which correspond to Sections 145 and 146 of the repealed CrPC regarding disputes likely to cause a breach of peace

It relied on Mahabirji Mandir Committee v. State of U.P. (1993 Cri LJ 2132), which established that jurisdiction under these sections arises only when there is a genuine dispute over actual possession; if one party’s possession is admitted or long-standing, the Magistrate cannot initiate such proceedings and should instead act under preventive sections like 107/116

The court further referenced Virendra Kumar v. State of U.P. (2003 Cri LJ 2709) to affirm that parties in possession cannot be dispossessed via summary criminal proceedings except in accordance with the law

The Court observed that the police report itself indicated that the O.P.s were running the shop and the applicant sought their eviction

Since the O.P.s were found to be in actual possession as tenants, the court reasoned that the fundamental requirement for Section 164 BNSS—a dispute over who is in actual possession—was absent

The court distinguished the applicant's reliance on Pawan Singhania v. State of U.P., noting that while a civil suit does not automatically bar Section 145/164 proceedings, such proceedings cannot be used as a substitute for an eviction suit when possession is not in doubt

The court held that the Magistrate exceeded his jurisdiction by attaching a property held by a tenant, as any eviction must follow due legal process through a civil court, not via summary attachment by an Executive Magistrate

The Court held that since the O.P.s were in actual possession, they could not be dispossessed through Sections 164/165 BNSS

The application under Section 482 was rejected, with the clarification that these observations are limited to the disposal of the present application