Kailash Chandra Sharma another v. State of Uttarakhand others

applicants, namely Mr. Kailash Chandra Sharma (Applicant No. 1), an 80- year-old resident of Joshimath, Chamoli, and his nephew Rakesh Sharma (Applicant No. 2), who is stated to be the owner and operator of the New Badri-Kedar Hotel and Restaurant in Joshimath.

2. The background facts, as narrated in the affidavit filed in support of the application, reveal that Applicant No. 2 has been running the said hotel for several years under valid licenses issued by both the Nagar Palika Parishad, Joshimath and the State Government’s Food Safety Department. The applicants claim peaceful and uninterrupted possession of the 1 Criminal Misc. Application No.434 of 2025----- Kailash Chandra Sharma & another Vs State of Uttarakhand & ors - Ashish Naithani J. premises, which is the subject matter of dispute in the impugned proceedings. It is their contention that on 02.04.2024, Respondent Nos. 2 to 5 attempted to take forcible possession of the hotel premises with the aid of local police, leading to unrest among the locals and the applicants. Following this incident, the local police purportedly prepared a report dated 04.04.2024, alleging a breach of peace and sought action under Section 145 of the CrPC.

3. Heard learned counsel on behalf of the parties and perused the records.

4. It is contended by the learned counsel for the Applicants that the Applicant No. 2, Mr. Rakesh Sharma, is the owner and operator of the “New Badri- Kedar Hotel and Restaurant” situated in Joshimath, which he operates under a valid license from the local Nagar Palika and the State Food Safety Department.

5. Learned counsel further submitsthat the Applicants are in peaceful possession of the property and that there exists no legal basis for initiating proceedings under Section 145 Cr.P.C., as there is neither a genuine dispute as to possession nor any imminent threat to public peace.

6. The learned counsel for the applicants argues that on 02.04.2024, Respondent Nos. 2 to 5 attempted to dispossessApplicant No. 2 by force, allegedly with the assistance of the police. Following this, a report dated

04.04.2024 was submitted by the police under influence of Respondents 2 to 5, leading to a notice under Section 145 being issued by the SDM on 02.05.2024. Learned counsel submitted that this notice suffers from non-application of mind, is without jurisdiction, and does not comply with the mandatory requirements of Section 145(1), particularly the SDM’s satisfaction as to the likelihood of a breach of peace.

7. It was further submitted that the SDM’s act of directing the seizure of the property in favour of the State is ultra vires, as no such provision exists under Section 145 or 146 Cr.P.C. The Applicants had approached the 2 Criminal Misc. Application No.434 of 2025----- Kailash Chandra Sharma & another Vs State of Uttarakhand & ors - Ashish Naithani J. Court of District and Sessions Judge, Chamoli, in revision under Section 397 Cr.P.C., which was dismissed on 28.02.2025.

8. Learned counsel argued that the revisional court erred in failing to appreciate the lack of legal foundation in the initiation of proceedings and reiterated the Applicants’ apprehension of being dispossessed connivance with the police.

9. Learned counsel Mr. Amar Murti Shukla, appearing for the private Respondents, submitted that the application deserved to be rejected. It was submitted that the dispute pertains to members of the same family regarding possession and division of income from a jointly-owned hotel, and that the apprehension of breach of peace is real and borne out from the material on recordIt was further submitted that the SDM has acted within the confines of Section 145 Cr.P.C. to prevent a breakdown of law and order.

10. The learned A.G.A. appearing for the State also supported the impugned proceedings and submitted that the SDM had acted lawfully based on a police report that clearly pointed to the likelihood of breach of peace. Learned counsel emphasized that the SDM has not made any final determinationbut merely initiated the statutory process to ascertain possession and maintain peace.

11. Upon perusal of the pleadings, affidavits, impugned notice dated

02.05.2024, the police report dated 04.04.2024, and the revisional order passed by the Learned District and Sessions Judge, Chamoli dated

28.02.2025, this Court finds no ground to exercise its extraordinary jurisdiction under Section 528 of the Bhartiya Nagarik Suraksha Sanhita,

2023. The Applicants’ prayer for quashing the proceedings initiated under Section 145 of the Code of Criminal Procedure, 1973, and for transfer of the case from the court of the Sub-Divisional Magistrate, Joshimath, is found to be devoid of merit for the reasons detailed hereunder. 3 Criminal Misc. Application No.434 of 2025----- Kailash Chandra Sharma & another Vs State of Uttarakhand & ors - Ashish Naithani J.

12. At the outset, it is pertinent to reiterate the statutory object and scope of Section 145 Cr.P.C. This provision is designed as a preventive measure intended to forestall breaches of the peace arising from disputes related to the possession of immovable property.

13. In the present case, the challan/report dated 04.04.2024 prepared by Sub-Inspector Sumit Kumar and forwarded by the Inspector-in-Charge, Kotwali Joshimath, explicitly recorded that there existed a dispute between members of the same familyboth the Applicants and the private Respondentsover the possession and ownership of the hotel property named "Badri Kedar Hotel," including the division of its income. The report clearly stated that the parties have been continuously quarrelling and that such conflict, given its nature and context, could lead to a breach of peace. The statements of various complainants and applications annexed to the police report corroborate the existence of hostility between the factions, including the use of threats, alleged forceful dispossession attempts, and agitation among the local public.

14. The learned SDM, upon receipt of this report, did not pass any final determination but instead issued a notice under Section 145 Cr.P.C., directing both parties to appear and present their claims. This initial step, which is investigative and interlocutory in nature, cannot be characterized as either prejudicial or final. The notice merely invited claims and counter- claims to assess actual possession and maintain peace. Furthermore, the notice was squarely within the procedural framework established under Section 145(1) Cr.P.C.

15. The record does not support the Applicants’ contention that the SDM lacked satisfaction or acted mechanically. The police report clearly demonstrated apprehension of breach of peace, a necessary prerequisite for invoking Section 145 Cr.P.C. The SDM was not expected to conduct a trial at the notice stage. The satisfaction under Section 145(1) Cr.P.C. is to 4 Criminal Misc. Application No.434 of 2025----- Kailash Chandra Sharma & another Vs State of Uttarakhand & ors - Ashish Naithani J. be subjective and prima facie, based on the material before the Magistrate, and not to be equated with a judicial determination under civil law.

16. The argument that the SDM could not direct seizure of property in favour of the State is also misconceived. A careful reading of the notice and accompanying record reveals that no final seizure order was issued under Section 146(1); instead, the notice broadly indicated that possession would remain secured pending a final determination. The revision court has rightly clarified in its judgment dated 28.02.2025 that such protective directions are intended not to transfer title but to preserve the peace and status quo.

17. Moreover, the Applicants’ narrative confirms that the dispute is inter se between family members. Their affidavits, complaints to the police, and statements made during the revision proceedings demonstrate that the issue involves contesting claims over ownership and income sharing. This factual background justifies the SDM’s invocation of preventive jurisdiction under Section 145, especially when tensions among family members had already spilt into public protests and unrest.

18. As regards the Revisional Court's decision, this Court finds no illegality or material irregularity. The District & Sessions Judge meticulously analyzed the factual and legal matrix and concluded that the SDM’s notice was a legitimate exercise of power under Section 145 Cr.P.C.

19. It was observed that the Applicant himself had described the property as jointly held, and that the potential for breach of peace was manifest. The revisional court further emphasized that possession disputes, even among family members, fall within the ambit of Section 145, if there is a likelihood of public disorder.

20. This Court also notes with caution the Applicants’ repeated assertion of their title and ownership rights. While such rights, if valid, can be asserted before a civil court of competent jurisdiction, they are irrelevant in 5 Criminal Misc. Application No.434 of 2025----- Kailash Chandra Sharma & another Vs State of Uttarakhand & ors - Ashish Naithani J. proceedings under Section 145 Cr.P.C., which are concerned with the preservation of peace and maintenance of possession, rather than title. The Applicants’ remedy lies in civil law, not in quashing preventive proceedings intended to protect public order.

21. Lastly, the invocation of Section 528 of BNSS, 2023, for transfer or quashing is found to be an abuse of process, particularly since the matter is still at the notice stage, and no final adjudication or prejudice has occurred. The applicants retain every opportunity to appear before the SDM and place their version of facts and possession, which is precisely what Section 145 contemplates. ORDER In view of the detailed discussion above, this Court finds no ground to interfere in the proceedings initiated under Section 145 Cr.P.C. by the Learned Sub-Divisional Magistrate, Joshimath, District Chamoli. The Criminal Miscellaneous Application under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023, is hereby dismissed. Dated:03rd July, 2025 NR/ (Ashish Naithani J.) 6 Criminal Misc. Application No.434 of 2025----- Kailash Chandra Sharma & another Vs State of Uttarakhand & ors - Ashish Naithani J.