Criminal Court Cannot Hand Over Immovable Property Under Police Act; Possession Must Be Decided By Civil Court: Calcutta High Court
The Calcutta High Court has held that criminal courts cannot adjudicate interim possessory rights over immovable property while exercising powers under the Police Act, 1861, observing that disputes concerning title, succession and possession fall exclusively within the domain of civil courts.Justice Kausik Chanda set aside orders of the Chief Judicial Magistrate and the appellate court which...
The Calcutta High Court has held that criminal courts cannot adjudicate interim possessory rights over immovable property while exercising powers under the Police Act, 1861, observing that disputes concerning title, succession and possession fall exclusively within the domain of civil courts.
Justice Kausik Chanda set aside orders of the Chief Judicial Magistrate and the appellate court which had directed handing over of keys and interim possessory control of a Kolkata property to a claimant asserting himself to be the deceased owner's son.
“The duty to preserve law and order cannot be extended to the adjudication of civil or possessory rights,” the Court observed.
The Court further held that the expression “property” under Sections 25 and 26 of the Police Act refers only to movable property and not immovable property.
Background
The case arose out of a dispute over premises situated at 159, S.P. Mukherjee Road, Kolkata, after one Nirmalya Sasmal, who resided there, was found unconscious on August 28, 2012 and later declared dead at SSKM Hospital.
Following his death, the Tollygunge Police Station locked the premises and retained the keys after making a General Diary entry, apprehending theft or unlawful trespass since valuables were allegedly lying unattended inside the house.
The petitioner, Kalinath Sasmal, claiming to be the step-brother of the deceased, asserted that he had performed the cremation and last rites. Opposite party no. 2, however, claimed to be the son of the deceased and sought custody of the keys.
In 2024, the Chief Judicial Magistrate, Alipore directed handing over of the keys “for use” to opposite party no. 2 after relying on a police verification report based on Election Commission, PAN, UIDAI and birth certificate records indicating that he prima facie appeared to be the deceased's son. The appellate court affirmed the order in 2025.
Challenging these orders before the High Court, the petitioner argued that the CJM had acted wholly without jurisdiction in directing handing over of an immovable property under Sections 25 and 26 of the Police Act.
Allowing the revision petition, the High Court examined the scheme of Sections 25, 26 and 27 of the Police Act, 1861.
The Court noted that the expression “Magistrate of the district” under the interpretation clause of the Police Act refers to “the chief officer charged with the executive administration of a district”, thereby indicating the executive magistracy and not judicial magistrates.
Justice Chanda held: “A Judicial Magistrate neither performs executive administration nor heads the district administration.”
The Court observed that construing a Judicial Magistrate as the “Magistrate of the district” would obliterate the statutory distinction between judicial and executive magistracy recognised under Section 3(4) of the CrPC.
Police Act Cannot Be Used To Decide Possession Of Immovable Property
The High Court also accepted the petitioner's argument that the term “property” under the Police Act includes only movable property, money or valuable security.
Relying on earlier decisions including Chhutanlal v. State and K.V. Krishna Murthy v. State of Madhya Pradesh, the Court reiterated that Sections 25 and 26 of the Police Act cannot be invoked to divest a person from possession of immovable property or to place another person in possession.
“The criminal court, under the guise of preserving property, cannot determine civil rights relating to title, succession or possession,” the Court held.
The Bench further held that the CJM effectively conferred interim possessory rights over disputed premises by directing handing over of the keys “for use” to opposite party no. 2, thereby transgressing jurisdictional boundaries.
The Court clarified that rival claims regarding inheritance, title and possession can only be adjudicated by competent civil courts through properly constituted proceedings.
It also rejected the argument that Sections 457 to 459 CrPC authorised such orders, observing that the case did not arise out of seizure connected with commission of an offence.
Referring to the Supreme Court's ruling in Nevada Properties Private Limited Vs. State of Maharashtra, the Court reiterated that criminal seizure powers are contextually limited insofar as immovable properties are concerned.
Setting aside both the CJM's order dated January 18, 2024 and the appellate order dated June 23, 2025, the High Court directed opposite party no. 2 to restore the keys and possession of the premises to the Officer-in-Charge of Tollygunge Police Station within seven days.
The Court further directed the police to prepare an inventory of articles lying inside the premises in the presence of both parties and retain custody of the keys only as a neutral custodian to maintain peace and protect the property, without recognising possessory or proprietary rights of either side.
The Court clarified that all questions relating to title, succession and lawful possession remain open for adjudication before competent civil forums, including proceedings for declaration, injunction, partition, probate or letters of administration.
Case: KALINATH SASMAL VERSUS THE STATE OF WEST BENGAL AND ANOTHER
Case No: C.R.R. No.3752 of 2025