Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 36 (GAU)

Sushil KR. Vasudeva v. Subhash Vasudeva

2006-01-05

P.G.AGARWAL

body2006
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. C.R. De, learned Counsel for the Petitioner and Mr. K.K. Mahanta, learned Counsel appearing for the Respondent. 2. On an application filed by the present Petitioner Sri Sushil Kumar Vasudeva, a proceeding under Section 145 Code of Criminal Procedure being MR Case No. 209/1999 was drawn up in respect of a plot of land measuring 1 bigha situated at North Lamding and fully described in the application Annexure-1 filed by the Petitioner (hereinafter referred as the DL). The said DL was also attached under Section 146 Code of Criminal Procedure During enquiry the first party examined as many as five witnesses, whereas the Respondent second party examined four witnesses. Thereafter, vide impugned order dated 22.8.2001 the learned Executive Magistrate held that the DL in question was in actual physical possession of the Respondent/second party Prajapati Brahma Kumari Ashram and accordingly declared possession in favour of the second party. 3. Feeling aggrieved, the Petitioner preferred criminal revision being CM 1 ON/2002 and the learned Sessions Judge vide impugned judgment dated 31.5.2002 dismissed the revision holding inter-alia that the impugned order does not suffer from any illegality or infirmity and does not call for any interference. 4. The present application has been filed under Section 482 Code of Criminal Procedure. 5. The learned Counsel for the Respondent has raised a preliminary objection regarding maintainability of the second revision in view of the provisions contained under Sub-clause 3 of Section 397 Code of Criminal Procedure which bars entertainment of a second revision by the High Court. The learned Counsel for the Respondent has placed reliance on a decision of the Apex Court in the case of Dharampal v. Smt. Ramshri AIR 1993 SC 1361 where in a matter relating to a proceeding under Section 145 Code of Criminal Procedure The Apex Court held as below: The question that falls for our consideration now is whether the High Court could have utilized the powers under Section 482 of the Code and entertained a second revision-application at the instance of the 1st Respondent. Admittedly the 1st Respondent had preferred a Criminal Application being Cr.R. No. 180 78 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment. The Sessions Judge had dismissed the said application on 14th May 1979, Section 397(3) bars a second revision application by the same party. Admittedly the 1st Respondent had preferred a Criminal Application being Cr.R. No. 180 78 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment. The Sessions Judge had dismissed the said application on 14th May 1979, Section 397(3) bars a second revision application by the same party. It is now well settled that the inherent powers under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st Respondent. On this short ground itself, the impugned order of the High Court can be set aside. 6. The decision in Dharampal was again considered by a three Judge Bench in the case of Krishnan v. Krishnaveni AIR 1997 SC 987 and the Apex Court held: (i) Second Revision before High Court under Section 397(1) Code of Criminal Procedure is prohibited by Sub-section (3) thereof. (ii) Inherent power of the High Court is still available under Section 482 Code of Criminal Procedure but such powers should be exercised sparingly and cautiously when High Court finds that (i) there is grave miscarriage of justice (ii) abuse of the powers of the court (iii) required statutory procedure has not been followed or (iv) order passed or sentence passed requires correction. (iii) A person-accused or complainant but 'State' is excluded-bar under Section 397(3) will not apply to 'State'. (iv) Powers under Section 482 Code of Criminal Procedure to be used sparingly so as to avoid needless multiplicity of procedure unnecessary delays in trial, and protraction of proceedings. 7. Mr. De, learned Counsel on the other hand submits that the Petitioner is aggrieved by the order of the revisional court below in refusing to reassess the evidence more particularly in the light of the observations of this Court in the case of Kh. Ningol Ibetombi Devi v. Dr. Pukharambam Ibomcha(1992) 2 GLR 162, wherein it was held that a revisional court may exercise any of the powers conferred on a court of appeal while considering the revision. 8. Ningol Ibetombi Devi v. Dr. Pukharambam Ibomcha(1992) 2 GLR 162, wherein it was held that a revisional court may exercise any of the powers conferred on a court of appeal while considering the revision. 8. On perusal of the impugned order passed by the revisional court, we find that the learned Sessions Judge nowhere refused to consider the matter raised before it and it merely held that the power of the revisional court is limited and it has no power to reassess the evidence. The revisional court on further examining, recorded a finding that the learned Executive Magistrate's finding is based on evidence on record which is cogent and corroborative in nature. 9. In the case of State of Karnataka V. Appa Balu Ingale, AIR 1993 SC 1126 the Apex Court observed: Ordinarily it is not open for the High Court to interfere with the concurrent findings of the courts below specially by reappreciating the evidence in its revisional jurisdiction. 10. At this stage, we may refer to the following observations of this Court in the case of Senaram Das v. Kashiram Das, (1995) 2 GLR 195:1995 (2) GLT 423: 11. Recently in Janata Dal v. H.S. Chowdhury and Ors. reported in (1992) 4 SCC 305 , the Supreme Court held that the object of the revisional jurisdiction under Section 401 was to confer power upon superior criminal courts-a kind of paternal or supervisory jurisdiction-in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted, on the one hand, or on the other hand in some undeserved hardship to individuals. The controlling power of the High Court was discretionary and it must be exercised in the interest of justice with regard to all facts and circumstances of each particular case. 12. From the ratio of the above decisions it appears that the revisional Court may in an appropriate case exercise the power available to a Court of appeal. However, before exercising the said power it must appear to the Court that there has been a manifest error of law or failure of justice apparent on the face of it. 11. 12. From the ratio of the above decisions it appears that the revisional Court may in an appropriate case exercise the power available to a Court of appeal. However, before exercising the said power it must appear to the Court that there has been a manifest error of law or failure of justice apparent on the face of it. 11. In the case of State of U.P. v. Udai Narayan (1999) 8 SCC 741 , the Apex Court observed that there is a distinction in the matter of jurisdiction while hearing an appeal and a revision. 12. We, therefore, find that the learned Sessions Judge did not commit any irregularity or illegality while observing that the powers of revisional court are limited. The court was required to examine whether there was any manifest error or infirmity or irregularity or lack of jurisdiction of the Executive Magistrate while disposing the proceeding under Section 145 Code of Criminal Procedure If the view taken by the Executive Magistrate is a plausible view and based on evidence, no interference by the revisional court is called for. There is a specific finding recorded by the revisional court that the evidence in favour of the second party is cogent and reliable. 13. The second submission by Mr. De is that the decision of the Executive Magistrate was based on the local inspection/enquiry made under Section 148 Code of Criminal Procedure The question was raised before the learned Sessions Judge and it observed that the Petitioner did not raise any objection regarding holding of local inspection/enquiry and once the report of inspection is prepared, the court below rightly considered the same. Moreover, we find that the decision of the Executive Magistrate was not based entirely on the inspection report but it was based on the evidence on record. 14. In view of the aforesaid, we hold that no case for interference under Section 482 Code of Criminal Procedure is made out. The revision stands dismissed. No order as to costs. Petition dismissed