Synopsis

The petitioner (landowner) filed a complaint before the Executive Magistrate under Section 164 BNSS, alleging that the respondents had forcibly trespassed into his property. The Magistrate issued a notice (not a preliminary order) and, after hearing the parties, held that the petitioner was entitled to possession. The respondents challenged this order in revision before the Sessions Court, which set aside the Magistrate's order on the ground that no preliminary order under Section 164(1) BNSS had been passed, and that the Magistrate had decided the matter on the basis of title rather than actual possession. The High Court dismissed the petitioner's writ petition, holding that: (i) a preliminary order under Section 164(1) is a sine qua non for the Magistrate to assume jurisdiction; (ii) the notice issued by the Magistrate did not constitute a preliminary order as it lacked grounds/reasons; (iii) proceedings under Section 164(1) without a preliminary order are vitiated under Section 507(j) BNSS; (iv) the Sessions Judge rightly exercised revisional jurisdiction.

1. Heading of the judgment

High court of judicature at bombay bench at goa

Criminal writ petition no. 39 of 2026

Shri. noberto paulo sebastiao fernandes (petitioner) vs. Shri. pankaj vithal tari volvoikar & ors. (respondents)

Coram: hon’ble mr. justice amit s. jamsandekar

Core Law: Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 164 (procedure where dispute concerning land or water is likely to cause breach of peace) – Preliminary order – Jurisdiction of Executive Magistrate – Section 438 (revisional powers) – Section 507(j) (irregularities which vitiate proceedings).

Court: High Court of Judicature at Bombay, Bench at Goa
Coram: Hon’ble Mr. Justice Amit S. Jamsandekar (Single Judge)
Date of Judgment: June 15, 2026 (Reserved on March 6, 2026)
Case No.: Criminal Writ Petition No. 39 of 2026
Citation: 2026:BHC-GOA:1133

2. Legal framework

Major laws and provisions involved:

• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) – Sections 164 (procedure where dispute concerning land/water is likely to cause breach of peace), 438 (revisional powers), 506 (irregularities which do not vitiate proceedings), 507(j) (irregularities which vitiate proceedings – orders under Part C or D of Chapter XI), 511 (saving of irregularities)

• Code of Criminal Procedure, 1973 – Sections 145, 146 (corresponding provisions), Section 397 (revision)

• Goa Daman and Diu Mundkars (Protection from Eviction) Act, 1975 – Mundkar rights

Subject matter of the judgment:

Whether the Executive Magistrate can assume jurisdiction under Section 164 BNSS and pass a final order determining possession of immovable property without first passing a preliminary order under Section 164(1) stating the grounds of his satisfaction regarding the existence of a dispute likely to cause breach of peace; and whether such failure vitiates the entire proceedings.

Key legal principles applied:

• Preliminary order is sine qua non for jurisdiction: Under Section 164(1) BNSS (corresponding to Section 145(1) CrPC), the Magistrate must make an order in writing stating the grounds of his satisfaction that a dispute likely to cause breach of peace exists concerning land or water. It is by making a preliminary order that the Magistrate assumes j

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