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1987 DIGILAW 1090 (ALL)

GULABOO v. STATE OF UTTAR PRADESH

1987-11-17

V.P.MATHUR

body1987
V. P. MATHUR, J. ( 1 ) TAKEN up after the revision of the list for the disposal of the application for vacation of the stay order. ( 2 ) THE learned counsel for the opposite party No. 2 Mr. O. S. Hajela and Mr. S. K. Yadav, learned counsel for the revisionist are present. The State is represented by the learned counsel for the State. ( 3 ) IN connection with the disposal of the application to vacate the stay order, the learned counsel for the opposite party No. 2 Mr. G. S. Hajela addressed the Court on merit also. ( 4 ) THE learned counsel for the revisionist Mr. S. K. Yadav says that he has no instructions from the client. ( 5 ) I went through the record, as it is, including the judgment of the learned Vth Additional Sessions Judge, Mathura dated 19. 5. 1987 and I feel that this revision itself can be disposed of finally, at this stage. ( 6 ) THE learned Vth Additional Sessions Judge, Mathura has up-set the judgment of the Sub- Divisional Magistrate, Sahabad on 3/2/1987. So far as the first part of the operative portion of the judgment is concerned, it can be said to be not illegal, but subsequently he has also passed an order by way of his own decision that Shyam Saran opp. party No. 2 was in possession on the date of the preliminary order and within two months prior to it. This part of his order is illegal. If the learned Additional Sessions Judge was not in agreement with the findings and the reasonings of the Magistrate the only way out for him was to up-set the Judgment of the learned Magistrate and direct him to decide the case afresh in the light of the observations which he had made. The question of satisfaction is exclusively of the Magistrate. The Sessions Judges Jurisdiction acting as a Court of revision and the powers which he can exercise in such proceedings are to be found within the four corners of section 397 and 399 of the Code of Criminal Procedure. The very words of sections 145 and 146 of the Cr. P. C. will make it clear that it is the satisfaction of the Magistrate, which is of relevance for the purposes of these sections. The very words of sections 145 and 146 of the Cr. P. C. will make it clear that it is the satisfaction of the Magistrate, which is of relevance for the purposes of these sections. A revisional Court may have the power to correct any error in the order passed by the Magistrate, but it will be beyond its powers and jurisdiction to re-assess the evidence and on such re-assessment to arrive at a finding which is at variance with the finding recorded by the Magistrate. It has so happened in this case. The learned Magistrate recorded a finding about the possession of one party. The learned Vth Additional Sessions Judge did not agree with that finding and he was justified in upsetting thus finding but he has gone beyond that when he has recorded a finding of his own to the effect that the other party was in possession on the date of the preliminary order and within two months prior to it. This is illegal and this order cannot be sustained. ( 7 ) THE result will be that the revision will have to be allowed with the direction that the order of the learned Vth Additional Sessions Judge dated 19/5/1987 shall stand quashed and the case shall go back to the learned Sub-Divisional Magistrate, Sadabad (Mathura) for re-determination of the entire question of possession on the spot at the relevant time and for passing a proper order in the light of these observations. .