Patna High Court
Arvind SinghversusThe State of Bihar, through the Chief Secretary, Government of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- ARUN KUMAR JHA
Holding
The writ petition is dismissed as the order converting the proceeding to Section 164 BNSS is not amenable to revision and an alternative remedy is available.
Summary
Arvind Singh, a fishery leaseholder, challenged a Sub‑Divisional Magistrate's order that converted a Section 163 proceeding into a Section 164 proceeding under the Bihar Non‑Statutory (BNSS) and imposed prohibitory restraints on his land. He sought writs of certiorari, mandamus, and compensation, alleging violation of his constitutional rights and procedural fraud. The High Court examined whether the order was amenable to revision under Article 226 and Section 397 of the Criminal Procedure Code. It held that the conversion order is a final, revisable order not subject to writ jurisdiction, and that the earlier Section 163 order had lost effect after two months, leaving no current restraint. Consequently, the petition was dismissed as an alternative remedy exists.
Issues considered
- Whether a High Court can entertain a writ petition under Article 226 to quash a Sub‑Divisional Magistrate's order converting a Section 163 proceeding to Section 164 under BNSS.
- Whether the order under Section 163 BNSS is an interlocutory order amenable to revision under Section 397 CrPC.
- Whether the petitioner has an alternative and efficacious remedy, precluding writ jurisdiction.
- Whether compensation for loss of livelihood can be awarded through a writ of mandamus.
Legislation cited
- Bihar Non-Statutory (BNSS) — s. 126, 163, 164
- Criminal Procedure Code — s. 397, 438
Subjects
- writ jurisdiction
- certiorari
- mandamus
- Section 163
- Section 164
- revision
- interlocutory order
- livelihood
- compensation
- Article 226
- Bihar
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.333 of 2026
======================================================
Arvind Singh S/O Ramlakhan Sharma R/O Village- Uphara, P.S- Uphara,
Distt.- Aurangabad, Bihar.
... ... Petitioner/s
Versus
1. The State of Bihar, through the Chief Secretary, Government of Bihar Old
Secretariat, Patna- 800015.
2. The Principal Secretary, Department of Revenue and Land Reforms,
Government of Bihar Vikas Bhawan, Bailey Road, Patna- 800001.
3. The District Magistrate, Aurangabad. Bihar
4. The Sub-Divisional Magistrate, Daudnagar, Distt.- Aurnangabad. Bihar
5. The Circle Officer, Goh Circle, Distt.- Aurangabad. Bihar
6. Smt. Rammani Devi W/O Late Ram Parmod Sharma R/O Village- Baijalpur,
P.S- Uphara, Distt.- Aurangabad.
7. Shri Vimlesh Sharma S/O Late Ramchandra Sharma R/O Village- Baijalpur,
P.S- Uphara, Distt.- Aurangabad.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Prince Kumar Mishra, Advocate
Mr.Ujjwal Kant Panday, Advocate
Mr. Utkarsh Pathak, Advocate
For the Respondent/s : Mr. Subhash Pd. Singh, GA-3
Mrs. Kiran Kumari, AC to GA-3
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 19-06-2026
The petitioner has filed the present petition for grant
of following relief(s):-
"a) For issuance of a writ in the nature of
Certiorari or any other appropriate writ
quashing and setting aside the impugned
dated 10.09.2025 passed by the Sub-
Divisional Magistrate, Daudnagar in Case
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No. 153/2025 under Section 163 BNSS,
along with all consequentil orders, including
the covert conversion to Section 164 BNSS,
and declare the said order to be non est in
law, having been passed prior to and
independent of the investigation report dated
09.12.2025, and therefore vitiated by non-
application of mind and procedural fraud.
b) Issue a writ of Mandamus or any
appropriate writ, order or direction directing
the Respondents to grant appropriate
compensation to the Petitioner for illegal
deprivation of his lawful fishery business
and livelihood on account of arbitrary, mala
fide and unconstitutional actions of the
Respondents, resulting in violation of
Articles 14, 19(1)(g) and 21 of the
Constitution of India.
c) Declare that the conversion of the
proceedings from Section 163 BNSS to
Section 164 BNSS, without notice and
opportunity of hearing, is illegal, null and
void, and that any order passed pursuant
thereto has no legal effect.
d) Issue a writ of Mandamus or Prohibition
directing the Respondents to restore the
status quo ante by removing all
encumbrances or restraints affecting the
Petitioner's 4.4 acres of fishery land and to
permit the Petitioner to carry on his lawful
Patna High Court CR. WJC No.333 of 2026 dt.19-06-2026
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occupation without hindrance.
e) For any other relief(s) as your Lordship
deem fit and proper in the facts and
circumstances of the case, including costs of
the petition."
02. Learned counsel for the petitioner submits that
the petitioner has taken the land in question in lease from one
Ranjeet Kumar Singh for 20 years. The petitioner has taken a
loan for doing work of fishing and has dug a pond on the said
land. The petitioner entered into an agreement after ascertaining
the fact that a partition by metes and bounds has taken place
between the co-sharers from more than 50 years ago and there
has been no dispute since then over the land in question.
However, one of the co-sharers initiated a proceeding under
Section 163 of BNSS against the petitioner and the learned Sub-
Divisional Magistrate, Daudnagar in Case No. 153/2025 issued
prohibitory orders against the parties and restrained the parties
from going to the land in question vide order dated 18.07.2025.
Thereafter, the petitioner appeared before the learned SDM and
placed his side of story supported with documents. Though the
learned SDM recorded all the submission of the petitioner, still
the learned SDM gave a finding that there was dispute over
right, title and possession between the parties with regard to the
land in question and there was possibility of breach of peace.
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The learned SDM also recorded that for the adjudication, proper
evidence needs to be adduced which was not possible within
short span under the provisions of Section 163 BNSS and
thereafter, converted the proceeding into 164 BNSS. Learned
counsel further submits that the impugned order infringes upon
the rights of the petitioner as his livelihood depends upon his
fishing work and fishes are dying as they are not being attended.
So, this Court could intervene under Article 226 of the
Constitution of India and learned counsel referred to the case of
Gulam Abbas & Ors Vs. State of U.P. in (1982) 1 SCC 71,
paragraph 23 and 24 in support of his contention. Learned
counsel also submits that the petitioner is being prevented from
going to the land in question in the garb of order dated
18.07.2025 passed by learned SDM, Daudnagar in Case No.
153/2025 though the orders have been passed for conversion of
proceeding into 164 BNSS. Learned counsel further submits
that after passing of the order dated 18.07.2025, the same
respondent, i.e., respondent no. 6 has filed another application
for initiation of proceeding under Section 163 BNSS and the
learned SDM has again instituted Case No. 263/2025 for the
same land in question and initiation of consecutive proceeding
is clearly abuse of the process of law when a proceeding under
Patna High Court CR. WJC No.333 of 2026 dt.19-06-2026
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Section 164 BNSS is still pending. In the said case the Station
House Officer, Uphara has submitted a report before the learned
SDM that separate report was being sent for initiation of
proceeding under Section 126 BNSS and has also submitted that
with regard to disputed land both the parties were earlier
restrained during the proceeding under Section 163 BNSS.
Proceeding under Section 164 BNSS is still pending. Learned
counsel, thus, submits that in the light of this fact, the petitioner
is being restrained from going to the land in question and his
livelihood is at stake and his fishes would die in such condition.
03. Perused the records.
04. From perusal of record I find that the proceeding
initiated in Case No. 153/2025 under Section 163 BNSS was at
the instance of respondent no. 6, who claimed that the land in
question was ancestral land and the mutation was running in the
name of her grandfather. She also claimed that certain
observations were made by DCLR in Land Dispute Resolution
Case No. 51/2022-23 that the agreement entered into by the
petitioner was illegal and ineffective and the petitioner was also
restrained from going to the disputed land.
05. On the other hand, the petitioner claims the land
on the basis of lease agreement for 20 years from one Ranjeet
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Kumar Singh and further submissions have been made before
the learned SDM that the land in question specifically belongs
to Ranjeet Kumr Singh and other co-sharers are not having any
share in the said land. On the basis of claim and counter claim
of the parties and the materials placed before it, the learned
SDM went on to convert the proceeding under Section 164
BNSS. The said order is a revisable order and the same ought
not be interfered with under the writ jurisdiction. Bare perusal
of language of Section 397 CrPC/438 BNSS which reads as
under:-
"Calling for records to exercise powers of
revision.- (1) High Court or any Sessions
Judge may call for and examine the record of
any proceeding before any inferior Criminal
Court situate within its or his local
jurisdiction for the purpose of satisfying
itself or himself as to the correctness, legality
or propriety of any finding. Sentence or
order, recorded or passed, and as to the
regularity of any proceedings of such inferior
Court, and may, when calling for such
record, direct that the execution of any
sentence or order be suspended, and if the
accused is in confinement, that he be
released on bail or on his own bond pending
the examination of the record.
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Explanation.- All Magistrates, whether
Executive or Judicial, and whether
exercising original or appellate jurisdiction,
shall be deemed to be inferior to the Sessions
Judge for the purposes of this sub-section
and of section 398.
(2) The powers of revision conferred by Sub-
Section (1) shall not be exercised in relation
to any interlocutory order passed in any
appeal, inquiry, trial or other proceeding.
(3) If an application under this section has
been made by any person either to the High
Court or to the Sessions Judge, no further
application by the same person shall be
entertained by the other of them."
Since the order dated 10.09.2025 is final order
converting the proceeding from Section 163 BNSS to Section
164 BNSS and no appeal lies against such order revision would
lies in terms of provisions of Section 397 CrPC/438 BNSS.
Therefore, the instant writ petition could not be entertained for
the reason that there is alternative and equally efficacious
remedy available to the petitioner.
06. So far as the submission of learned counsel for
the petitioner about the petitioner being restrained from going to
the land in question due to promulgation of order dated
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18.07.2025 in Case No. 153/2025 by learned SDM is concerned,
I do not think the same should give any trouble to the petitioner
for the reason that the order passed under Section 163 BNSS
could not remain for more than two months from the making
thereof. Therefore, as on date there is no prohibitory order
against the petitioner.
07. With the aforesaid observation, the present writ
petition is disposed of. At the same time, learned SDM would
also take note of the fact that for the same land, a proceeding
was initiated under Section 163 BNSS earlier which has been
converted under Section 164 BNSS and the learned SDM would
take step for disposal of the proceeding under Section 164
BNSS as the order has been passed on 10.09.2025 fixing the
next date for 30.12.2025 but the proceeding under Section 164
BNSS has not been concluded.
.08. At this stage, learned counsel appearing on
behalf of the State-respondents submits that in case of any
future dispute, any party can approach the administration for
maintenance of peace.
. 09. It is made clear that this Court has not passed
any order preventing any of the parties from approaching the
authorities in case of any breach of peace. This Court only
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clarified that the order dated 18.07.2025 has also lost its effect
in terms of Section 163(4) BNSS. Further, this Court has
directed the learned SDM to take note that the other side, i.e.,
respondent no. 6 has again filed an application before the
learned SDM for initiation of proceeding under Section 163
BNSS. It goes without saying that the parties are at liberty to
take all these issues before the learned SDM to establish their
case.
(Arun Kumar Jha, J)
DKS/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 22.06.2026
Transmission Date NA
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