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Uttarakhand High Court
Kailash Chandra Sharma & Another … vs State Of Uttarakhand & Others on 3 July, 2025
2025:UHC:5914
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Misc. Application No. 434 of 2025
Kailash Chandra Sharma & another ......Applicants
Vs.
State of Uttarakhand & others .....Respondents
Presence:
Mr. R.P. Nautiyal, learned senior counsel assisted by Mr. Pawan Kumar Nath, learned counsel for the
Applicants.
Mr. G.C. Joshi, learned AGA, for the State.
Mr. Amar Murti Shukla, learned counsel, for Private Respondent.
Hon'ble Ashish Naithani, J.
1. This is a Criminal Miscellaneous Application preferred under Section 528
of the Bhartiya Nagarik Suraksha Sanhita, 2023 (formerly Section 482 of
the CrPC), seeking transfer and quashing of proceedings initiated under
Section 145 Cr.P.C. (1973) by the Sub-Divisional Magistrate, Joshimath,
District Chamoli. The present application has been instituted by the
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
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Criminal Misc. Application No.434 of 2025----- Kailash Chandra Sharma & another Vs State of Uttarakhand &
ors -
Ashish Naithani J.
2025:UHC:5914
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 the 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
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Criminal Misc. Application No.434 of 2025----- Kailash Chandra Sharma & another Vs State of Uttarakhand &
ors -
Ashish Naithani J.
2025:UHC:5914
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 in
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.
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Criminal Misc. Application No.434 of 2025----- Kailash Chandra Sharma & another Vs State of Uttarakhand &
ors -
Ashish Naithani J.
2025:UHC:5914
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
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Criminal Misc. Application No.434 of 2025----- Kailash Chandra Sharma & another Vs State of Uttarakhand &
ors -
Ashish Naithani J.
2025:UHC:5914
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
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Criminal Misc. Application No.434 of 2025----- Kailash Chandra Sharma & another Vs State of Uttarakhand &
ors -
Ashish Naithani J.
2025:UHC:5914
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.
(Ashish Naithani J.)
Dated:03rd July, 2025
NR/
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Criminal Misc. Application No.434 of 2025—– Kailash Chandra Sharma & another Vs State of Uttarakhand &
ors –
Ashish Naithani J.
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