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1994 DIGILAW 4 (MP)

Mahendra Kumar v. State of M. P.

1994-01-04

R.D.SHUKLA

body1994
JUDGMENT The petitioner challenges the order dated 16.12.91of Sessions Judge, Mandsaur, passed in Cri. Revision No. 117/91, whereby the order Of S.D.M., affirming the possession of the non-applicant has been maintained. The brief history of the case is that the father of the petitioner was a worker with non-applicant No. S.1&2. He expired. The petitioner was in possession of the accommodation as an heir of the earlier worker. It is alleged that non-applicants 1 & 2 forcibly took possession of the house an 1.11.87 and therefore a report was made to the police. The proceedings under S. 145 of Cr.P.C. were started. The contention of the non-applicants was that the petitioner voluntarily handed aver the possession an 31.10.87. The S.D.M. during enquiry recorded the evidence adduced by the parties and ultimately found that the possession was handed aver by the petitioner to the non-applicants 1 & 2 who are said to' be the owners of the house. The revision against the said order was filed before the Sessions Judge who dismissed it vide order referred above. Hence, this petition u/S 482 Cr.P.C. The contention of the learned counsel for the petitioner is that apparent illegality has been committed by the Sessions Judge while accepting inadmissible evidence as to the discharge of the accused-non-applicants under sections 448 & 379 of IP.C. The I1nd contention of the learned counsel for the petitioner is that it is highly unnatural that a person would handover the possession and will file report immediately next day. As against it learned counsel for the State has submitted that the 2nd revision is barred u/S 397 (3) Cr.P.C. and therefore despite certain mistakes having been committed by the Magistrate or the Sessions Judge this petition would not be maintainable. Though, it is true that learned Sessions Judge has-admitted in evidence the discharge order passed in Criminal case for the purpose of proving the possession which is contrary to law. The judgment of Criminal Court is not admissible in evidence accepting for the purpose of showing the fact of acquittal or discharge itself. The first point that arises for consideration in this case is as to whether the petition under section 482 Cr.P.C. would be maintainable. The similar question arose before Their Lordships of the Supreme Court as reported in AIR 1993 SC page 1361 (Dharampal & Ors. v. Smt. Ramka1i & others). The first point that arises for consideration in this case is as to whether the petition under section 482 Cr.P.C. would be maintainable. The similar question arose before Their Lordships of the Supreme Court as reported in AIR 1993 SC page 1361 (Dharampal & Ors. v. Smt. Ramka1i & others). The following observation in para-4 of the said judgment is relevant for that case: "It is now well settled that inherent powers u/s. 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Court". The earlier revision filed by the petitioner has already been dismissed and therefore this would amount to a second revision, which is barred under S. 397 (3) of the CLP.C. Now, so far as the finding as to the possession is concerned that is based on appreciation of evidence. It is not open for this Court to interfere in the finding specially where evidence showing the probability of the finding has been adduced by the parties. In the opinion of this Court this petition under S. 482 Cr.P.C. is not maintainable. Hence it is dismissed. AIR 1993 SC 1361 followed.