BIDYADHAR GIRI Vs. UMAKANTA BEWA AND ORS.

JUDGEMENT

(1.) SECOND party No. 5 in a proceeding under Section 145 of the of Criminal Procedure is the Petitioner.

(2.) ON the basis of a report from the police dated 23rd of April 1980, this proceeding under Section 145 of the Code of Criminal Procedure was initiated and the preliminary order therein was passed on 23.6.1980 on the Magistrate coming to the conclusion that disputes exist between the parties pertaining to possession of land, Pursuant to the notice issued by the Magistrate, the parties entered appearance and filed their written statements claiming possession over the la in question and also led evidence before the Magistrate. On a thorough scrutiny of the evidence red before him, the Magistrate passed till final order on 20th of October, 1982, declaring the possession of the Petitioner in respect of the disputed land on the date of the preliminary order and restrained others from disturbing the possession of the Petitioner. This order of the Magistrate was challenged by the first party members in revision before the Sessions Judge. The learned Sessions Judge by the impugned judgment dated 26th March, 1986, reversed the decision of the Magistrate and came to hold that it was, the first party those possession must be declared or the date at the preliminary order. Hence the present revision.

(3.) NO doubt, the power of revision confers wide discretion to be exercised fairly by the revisional court according to the exigencies of a case, but it is too well settled that such exercise is normally done only in exceptional cases where there is glaring defect in the, procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. It is not to be exercised only for correcting injustice or, in other words, a mere illegality is not to be corrected in exercise of the revisional power. The revisional court is not expected to act as if it is hearing an appeal and its jurisdiction is not to be ordinarily invoked or used merely because the Magistrate has taken a wrong view of the law or even misappreciated the evidence on record. An order of the Magistrate should not be set aside simply because the revisional court takes a different view on the evidence. See, Akalu Ahir and Ors. v. Ramdeo Ram : A.I.R. 1973 S.C. 2145 and State of Orissa v. Nakula Sahu and Ors. : A.I.R. 1979 S.C. 663. This being the position, if the impugned judgment of the learned Sessions Judge is examined it appears that he has transgressed his limits by coming to his own conclusion on re -appraisal of the entire evidence on record, in my opinion he was not justified in doing so. Even the learned Sessions Judge himself was conscious of his limitations, but ultimately has been swayed away and has committed the error of re appraising the evidence and coming to his own conclusion as if he is exercising the appellate power. In this view of the matter, the impugned order of the learned Sessions Judge cannot be sustained, I would accordingly set aside judgment of the learned Sessions Judge in Criminal Revision No. 83 of 1983 and affirm the judgment of the learned Magistrate in Criminal Misc. Case No. 79 of 1980.