Calcutta HC Sets Aside Magistrate's Order Handing Over Disputed Flat, Holds Criminal Courts Cannot Adjudicate Possessory Rights Over Immovable Property
Justice Kausik Chanda held that a Chief Judicial Magistrate acted wholly without jurisdiction when it directed handing over keys of a disputed Kolkata flat under the Police Act, 1861, ruling that Sections 25 and 26 of that Act are confined to movable property and vest authority only in the executive magistracy.
The High Court at Calcutta has quashed orders passed by a Chief Judicial Magistrate and affirmed on appeal by an Additional District and Sessions Judge, which had directed handing over the keys and interim possessory control of premises at 159, S.P. Mukherjee Road, Kolkata – 700026 to one of two rival claimants. Justice Kausik Chanda, sitting singly in Criminal Revisional Jurisdiction, held that the Learned Chief Judicial Magistrate had no jurisdiction to pass such an order under Sections 25 and 26 of the Police Act, 1861, because those provisions apply only to movable property and vest authority exclusively in the executive magistracy, not in a Judicial Magistrate. The judgment, bearing citation 2026:CHC-AS:814 and pronounced on 22 May 2026, directs restoration of the keys to the Officer-in-Charge, Tollygunge Police Station within seven days, leaving all questions of title and possession open for a competent civil court.
The Dispute Before the High Court
The facts begin on 28 August 2012, when one Nirmalya Sasmal was found lying unconscious at the S.P. Mukherjee Road premises and was removed to SSKM Hospital, where he was declared dead. The local police of Tollygunge Police Station, apprehending theft or unlawful trespass into the premises where valuables lay unattended, locked the premises and retained the keys in police custody, recording General Diary Entry No. 2483 dated 28 August 2012.
On 10 September 2012, the police informed the Learned Chief Judicial Magistrate, Alipore of the General Diary Entry and the action taken. The petitioner, Kalinath Sasmal, who claims to be the step-brother of the deceased and asserts that he performed the cremation and last rites, approached the Chief Judicial Magistrate seeking custody of the keys. The matter remained pending for an unusually long period.
On 10 October 2023, opposite party no. 2 entered appearance before the Chief Judicial Magistrate claiming to be the son of the deceased and sought custody of the keys. A police verification report was called for. That report, drawing on Election Commission records, PAN records, UIDAI details and a birth certificate issued by the Kolkata Municipal Corporation, indicated that opposite party no. 2 prima facie appeared to be the son of the deceased.
On 18 January 2024, the Chief Judicial Magistrate directed handing over of the keys to opposite party no. 2 “for his use” upon furnishing a bond and undertaking. Kalinath Sasmal challenged that order in Criminal Appeal No. 92 of 2024 before the Additional District and Sessions Judge, Fast Track Court, 8th Court at Alipore, South 24 Parganas. That appeal was dismissed on 23 June 2025. The present criminal revision, C.R.R. No. 3752 of 2025, followed.
The Legal Issues
Three distinct questions arose before Justice Chanda. First, whether the expression “Magistrate of the district” in Sections 25 and 26 of the Police Act, 1861 encompasses a Judicial Magistrate or is confined to the executive magistracy. Second, whether the word “property” in those sections extends to immovable property. Third, whether a criminal court can, under any provision, adjudicate interim possessory rights over immovable property as between rival claimants.
Mr. Ayan Bhattacharya, Senior Advocate for the petitioner, argued that the Police Act vests authority only in the executive magistracy and that the word “property” in Sections 25 and 26 is confined to movable property. He relied on Chhutanlal v. State, AIR 1968 Rajasthan 70, and K.V. Krishna Murthy v. State of Madhya Pradesh, 1987 SCC OnLine MP 379, both of which held that the Police Act cannot be invoked for disputes concerning immovable property. He also relied on Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, for the proposition that an order passed without jurisdiction is a nullity.
Opposite party no. 2, represented by Mr. Sabyasachi Banerjee, Senior Advocate, supported the impugned orders. He argued that Sections 457, 458 and 459 of the Code of Criminal Procedure became applicable by virtue of Section 26 of the Police Act, thereby clothing the Chief Judicial Magistrate with competence. He further submitted that opposite party no. 2 had established his identity through official records while the petitioner had produced no cogent documentary evidence, and that after nearly fourteen years the petitioner could not invoke revisional jurisdiction to unsettle possession already handed over. Reliance was placed on Nevada Properties Private Limited v. State of Maharashtra, (2019) 20 SCC 119.
How the Bench Reasoned
Justice Chanda began with the interpretation clause of the Police Act, 1861, which defines “Magistrate of the district” as “the chief officer charged with the executive administration of a district and exercising the powers of a Magistrate.” That description, the Court held, corresponds to the executive magistracy alone. A Judicial Magistrate neither performs executive administration nor heads district administration.
The Court then read Section 3(4) of the Code of Criminal Procedure, 1973, which draws a clear line: functions of an administrative or executive nature — such as granting or cancelling licences — are exercisable by an Executive Magistrate, while functions involving appreciation of evidence or exposure of a person to punishment are exercisable by a Judicial Magistrate. Preserving and disposing of unclaimed property under Sections 25 and 26 of the Police Act is, in the Court's view, essentially preventive and administrative in nature, not adjudicatory. It falls on the executive side of that line.
The Court therefore held that to construe a Judicial Magistrate as “the Magistrate of the district” would obliterate the deliberate statutory separation between judicial and executive magistracy recognised in Section 3(4). Every “Magistrate of the district” is a Magistrate in the generic sense, but not every Magistrate qualifies as “the Magistrate of the district”; and a Judicial Magistrate cannot be equated with the executive authority that the expression contemplates.
On the second question, the interpretation clause of the Police Act defines “property” to include “any movable property, money or valuable security.” Immovable property is absent from that definition. The Court found substantial force in the petitioner's argument and agreed with the view taken in Chhutanlal v. State and K.V. Krishna Murthy v. State of Madhya Pradesh that Sections 25 and 26 are confined to movable property and cannot be invoked to divest a person from possession of immovable property or to assist another in obtaining possession thereof.
The Court also rejected the argument that Sections 457 to 459 of the Code of Criminal Procedure validated the Magistrate's exercise. The premises were not seized in connection with the commission of any offence. Chapter XXXIV of the Code cannot be read to permit criminal courts to adjudicate disputes of civil possession between rival claimants over immovable property. The Court read Nevada Properties Private Limited v. State of Maharashtra as itself recognising the contextual limitation upon criminal seizure powers where immovable property is concerned, not as supporting the opposite party's position.
On the argument that the petitioner's participation before the Magistrate validated the proceedings, the Court was unequivocal: jurisdiction cannot be conferred by consent, acquiescence or waiver. A defect relating to subject-matter jurisdiction strikes at the root of the authority of the court itself. Citing Kiran Singh v. Chaman Paswan, the Court held that an order passed without jurisdiction is a nullity in the eye of law.
The Court acknowledged that the police were justified in temporarily securing the premises immediately after the death of Nirmalya Sasmal to prevent theft, trespass or disturbance of public peace. However, the duty to preserve law and order cannot be extended to adjudicating civil or possessory rights. Since the property remained unclaimed at the relevant time, the police ought to have furnished information to the competent authority under Section 4 of the West Bengal Escheats and Forfeitures Act, 2012.
The West Bengal Escheats and Forfeitures Act, 2012, enacted under Article 296 of the Constitution of India, deals with the taking over, management, administration and disposal of property vested in the State of West Bengal by escheat, lapse or as bona vacantia, and unclaimed property. Under that Act, “unclaimed property” expressly includes immovable property. The competent authority designated under the Act is empowered to pass an order under Section 4 for transfer and vesting of unclaimed property in the State, following which the Collector of the District takes charge under Section 5 and deals with the property under Sections 6, 7 and 8.
The Court noted, however, that the property in question can no longer be described as unclaimed. The right, title and interest over the premises is now seriously contested by both parties. Questions of title, inheritance, succession and possessory rights over immovable property are matters eminently triable by civil courts upon appreciation of evidence and cannot be decided summarily in criminal proceedings.
Outcome
Justice Chanda set aside and quashed both the order dated 18 January 2024 passed by the Learned Chief Judicial Magistrate, Alipore in connection with Tollygunge Police Station General Diary Entry No. 2483 dated 28 August 2012, and the judgment and order dated 23 June 2025 passed by the Learned Additional District and Sessions Judge, Fast Track Court, 8th Court at Alipore in Criminal Appeal No. 92 of 2024.
Opposite party no. 2 was directed to restore the keys and possession of the premises to the Officer-in-Charge, Tollygunge Police Station within seven days from the date of the judgment. The Officer-in-Charge was directed to prepare an inventory and a detailed list of all properties and articles lying at the premises in the presence of both parties, and to retain custody of the keys solely as a neutral custodian for the purpose of maintaining peace and protecting the property, without recognising or conferring any possessory or proprietary right in favour of either party.
The Court made clear that it had not adjudicated upon title, succession or lawful possession, and all such questions were left open for decision before a competent civil court. Both parties were granted liberty to seek appropriate reliefs before the competent civil forum, including declaration, injunction, partition, probate or letters of administration, as may be advised. C.R.R. No. 3752 of 2025 was accordingly allowed.