1 / 5 2025:CGHC:53375 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 1263 of 2025 Rakesh Kumar Jain S/o Late Shri Bhagchand Jain, Aged About 60 Years R/o Rama World, Tifra, Tehsil and District Bilaspur (C.G.) ... Applicant versus 1 - Chitrakant Kesari S/o Late Udhoshyam Kesari, Aged About 46 Years R/o Dayalband, P.S. City Kotwali, Bilaspur Tehsil And District Bilaspur (C.G.) 2 - Bina Mishra W/o Late Shri Mukesh Mishra, Aged About 55 Years R/o Hemu Nagar, Annapurna Colony, Jinat Vihar, Faze-2, P.S. Sirgitti, Bilaspur Tehsil And District Bilaspur (C.G.) ... Respondents For Applicant : Mr. B.P. Sharma, Advocate along with Mr. Nishant Bhanushali & Ms. Nidhi Tiwari, Advocates For Respondent No.1 : Mr. Bhupendra Singh, Advocate (Hon’ble Shri Justice Arvind Kumar Verma) Order on Board 31/10/2025 1. With the consent of learned counsel for the parties, the matter is heard finally. 2. By way of the instant petition, the petitioner has prayed for the following prayer:- ASHUTOSH MISHRA Digitally signed by ASHUTOSH MISHRA Date: 2025.11.04 18:15:46 +0530 2 / 5 It is therefore most respectfully prayed that this Hon'ble Court may kindly be pleased to allow the instant revision petition and quash the impugned order dated 06.09.2025 (ANNEXURE A/1), passed by the Learned Xth Additional Sessions Judge, Bilaspur (C.G.) in Criminal Revision No. 83/2025, bearing parties 'Chitrakant Kesari vs Rakesh Kumar Jain & another' in Revision petition U/s 438, 439, 440 of BNSS, 2023 preferred by the respondent no.1 herein, OR remand back the matter to the Court of Sub Divisional Magistrate (City)/City Magistrate, Bilaspur (C.G.) in terms of law laid down in the matter of 'Santosh jain & ors vs Salim Khan & ors', in criminal revision no. 868 of 2010, decision dated 13 May 2011 which is a binding precedent and by directing the Sub Divisional Magistrate (City)/City Magistrate, Bilaspur (C.G.) to decide the matter afresh, in the interest of justice. 3. The instant petition has been filed by the applicant/petitioner challenging the impugned order dated 06.09.2025 (ΑΝΝΕXURE A/1), passed by Learned Xth Additional Sessions Judge, Bilaspur (C.G.) in Criminal Revision No. 83/2025(Chitrakant Kesari vs Rakesh Kumar Jain & another) in Revision petition preferred U/s 438, 439, 440 of BNSS, 2023 by the respondent no.1 herein, whereby quashed the order dated 09.05.2025 (ANNEXURE A/2) passed by Sub Divisional Magistrate 3 / 5 (City), Bilaspur (C.G.) in Istegasha No.3/24 and 4/2024 presented by police officials of Police Station City Kotwali Bilaspur (C.G.), wherein Sub Divisional Magistrate (City)/City Magistrate, Bilaspur registered Criminal Case No.1/25, U/s 145,146 Cr.P.C., 1860 / 164 BNSS, 2023 and by exercising power in virtue of Section 145 Cr.P.C. declared the lawful possession of property in dispute bearing Land part of Khasra No. 119, admeasuring 1740 sq.ft. situated at Mauja-Juna Bilaspur, Tahsil & District Bilaspur (C.G.) in favor of wife of present petitioner namely Smt. Sunita Jain being title holder of property in dispute further restraining the respondent no.1 from disturbing the above peaceful possession of her over the said property. 4. Learned counsel for the petitioner would contend that even if the procedural irregularity has been committed by the Court of City Magistrate Bilaspur by not impleading Smt. Sunita Jain as party in the case and declared possession in favour of her then also such defect can be cured by remanding the case back to the original Court. He would next contend that though the revisional Court quashed the impugned order dated 09/05/2025 but while quashing the said impugned order itself not remanded the case back before the concerned SDM. He would lastly contend that under these circumstances, the matter may be remanded back to the Court of Sub Divisional Magistrate (City)/City Magistrate Bilaspur in terms of law laid down by the High Court of M.P. in the matter of Santosh Jain & Ors. Vs. Salim Khan & Ors in Criminal Revision No.868 of 2010, decided on 13.05.2011 and the concerned SDM may be directed to decide the matter afresh. 4 / 5 5. Learned counsel for the respondent contended that the concerned SDM has not given proper opportunity of hearing to the respondent and is trying to fix the day to day hearing. 6. I have heard learned counsel for the parties and perused the documents with utmost circumspection. 7. On perusal of the record I have found that a proceeding under Section 145/146 Cr.P.C. (under Section 164 of BNSS) has been initiated by the present applicant against the Respondent No.1 before the Sub Divisional Magistrate, Bilaspur, C.G. and the SDM has passed the order in favour of the applicant, however, the learned revisional Court set aside the order passed by the SDM but not remitted the matter back to the SDM. The revisional Court has considered non-compliance of Section 145/146 Cr.P.C. (now Section 164 BNSS), therefore, the matter is required to be remitted back to the SDM. 8. Considering the entire facts & circumstances of the case, particularly that the concerned SDM has not passed the preliminary order and as per the judgment passed by the High Court of Madhya Pradesh in the matter of Santosh Jain (Supra), it is crystal clear that when an Executive Magistrate wants to take preventive action under Section 145 of the Cr.P.C., he should draw a preliminary order and if the no preliminary order has been passed, the order under Section 146 of the Cr.P.C. is invalid. 9. In the present case, no preliminary order has been passed by the concerned SDM, therefore, the concerned ASJ though has rightly passed the order but he was bound to remit back the matter before the concerned 5 / 5 SDM, therefore, the case is remitted back to the concerned SDM and the concerned SDM is directed to proceed strictly in accordance with law after giving sufficient opportunity of hearing to all the concerned parties and thereafter shall pass the order on its own merits. 10. It is made clear that this Court has not expressed any opinion on the merits of the case and the respondent authorities shall proceed in accordance with law on its own merits. 11. With the aforesaid observation, the instant petition stands disposed of. SD/- (Arvind Kumar Verma) JUDGE ashu