ORDER
D.N. Baruah, J.
1. This revision is directed against the judgment and order passed by the Sessions Judge, Nagaon on 13-12-94 in Criminal Motion No. 95(N)/ 94 allowing the revision filed by the opposite party (first party) and declaring possession in favour of the opposite party (first party) in a proceeding Under Section 145, Cr. P. C.
2. At the instance of the opposite party the Sub-Divisional Magistrate, Nagaon initiated a proceeding Under Section 144, Cr. P. C. on 22-2-94 in respect of a plot of land measuring 9 Bighas 2 Kathas 13 Lechas covered by periodic Patta No. 46 (old) 38 (new) in Dag No. 211 situated at Bajarchuk gaon. The opposite party also stated that the second party threatened him with dire consequence and there was likelihood of breach of peace and tranquillity over the disputed land. Thereafter the case came up before an Executive Magistrate for disposal. The Executive Magistrate registered the case as MR No. 60/94 under Sections 145/446, Cr. P. C. and also passed an order Under Section 146 attaching the disputed land as the Executive Magistrate considered the case to be one of emergency. After examination of the witnesses on behalf of the parties the Executive Magistrate declared possession in favour of the petitioners (second party). Being aggrieved the opopsite party (first party) approached the Sessions Judge by filing a Criminal Revision (Criminal Motion No. 95(N) 94). The Sessions Judge after hearing the parties by his judgment and order dated 13-12-94 allowed (he revision and set aside the order passed by the Executive Magsitrate declaring possession in favour of the petitioners (second party). However, the Sessions Judge did not consider it fit to remand the case as in his opinion, the evidence on record clearly showed that the opposite party (first party) was forcibly and wrongfully dispossessed on 20-2-94. He appreciated the evidence recorded by the Executive Magistrate and declared possession in favour of the opposite party (first party). Hence the present petition.
3. I have heard Mr. D. N. Choudhury learned counsel appearing on behalf of the petitioners and Mr. G. P. Bhowmik, learned counsel appearing on behalf of the opposite party.
4. The main contention of Mr. Choudhury is that in the present case the Sessions Judge exceeded his jurisdiction by declaring possession after appreciating the evidence on record. According to Mr. Choudhury. the facts and circumstances of the case did not warrant such action. The further contention of Mr. Choudhury is that the revisional Court may in an appropriate case exercise the power available to an appellate Court, but it has no jurisdiction to substitute its own decision. The revisional Court if after examining the legality of a decision, in an appropriate case, finds that there is any illegality in the said decision, it may set aside the same and direct the subordinate Court to deal with the matter. Mr. G. P. Bhowmik, learned counsel appearing on behalf of the opposite party (first party), on the other hand, submits that the revisional Court can pass any appropriate order, for the ends of justice, which an appellate Court can pass. At least Sections 399 and 401 of the Cr. P. C. indicate the same. In this connection Mr. Bhowmik has drawn my attention to two decisions of this Court in Rahmat Ali v. Naba Singh, reported in (1984) 1 GLR (NOC) 29 and in Pabindra Nath Sarma v. Jagadish Seal, reported in (1985) 1 GLR 292.
5. In Rahmat Ali (supra), this Court held that it was settled law that in a revision the Sessions Judge could look into the order passed by the subordinate Court as to whether the order impugned before him was illegal or without jurisdiction so as to warrant interference in revision. In the said case the learned Single Judge after discussing the facts of the case observed that there was no finding by the Sessions Judge as to the fact that the impugned order wasin any manner violative of any of the provisions of Section 145, Cr. P. C. or that the learned Magistrate had assumed jurisdiction thereunder erroneously. In that view of the matter the Sessions Judge could not have interfered with the impugned order. The learned single Judge further held that the Sessions Judge committed an error of law in arriving at its independent finding on the question of possession on perusal of the documents filed before him by the parties. The learned single Judge also observed that this was the job to be done by the learned Magistrate. In the case of Pabindra Nath Sarma (supra), as cited by Mr. Bhowmik, this Court dealt with a matter relating to Section 145. Cr. P. C. proceeding. In the said case the Court held that it was the bounden duty of the Sessions Judge to discuss the evidence threadbare as a final Court of facts and then arrive at its own independent findings before recording its conclusion. Mere dittoing the findings of Magistrate would not avail him and enable him to render proper judgment in revision. In that case this Court found that the Sessions Judge did not address himself to the real controversy regarding the possession. This Court found that the Sessions Judge simply dittoed the order passed by the Magistrate. In Rahmat Ali (supra) this Court specifically referred that there had been some error in passing the impugned order and it was directed to be corrected by the subordinate Court. In Pabindra Nath Sarma’s case this Court also found that the Sessions Judge did not address himself to the questions connected with Section 145, Cr. P. C. and remanded the case to the Sessions Judge to rewrite the judgment in pursuance of the observations made in the said decision.
6. Mr. D. N. Coundhury, learned counsel, on the other hand, has drawn my attention to the following decisions :
(1) Thoudam Abenjao Singh v. Moirangtham Ningol Leirensana Devi, reported in 1977 Cri LJ 210 (Gau).
(2) Ramgopal Ganpatrai Ruia v. State of Bombay, .
(3) Amar Chand Agarwala v. Shanti Bose .
(4) Akalu Ahir v. Ramdeo Ram, .
(5) State of Orissa v. Nakula Sahu .
(6) Janata Dal v. H. S. Chowdhary .
7. In case of Thoudam Abenjao Singh (supra), this Court held that the revisional powers and jurisdiction of Court could not be equated with appellate powers and jurisdiction and the revisional Court could not appreciate or re-appreciate evidence and set aside findings of fact of the trial Court and substitute its own findings if it merely differed from the trial Court’s view. This Court further held that only in extreme cases the revisional Court, could set aside the findings of fact when they were based on mis-reading or non-reading of evidence or misappreciation of evidence.
8. In Ramgopal Ganpatrai Ruia (supra), the Supreme Court held that revisional Court in appropriate case might pass any order in exercise of the revisional power and also the powers available to an appellate Court subject to the fact that a revisional Court could not convert a finding of acquittal into one of conviction. However, in the said case the Supreme Court held that revisional power should be exercised in an exceptional case.
9. In Amar Chand Agarwala v. Shanti Bose (supra), the Supreme Court had the occasion to deal with the matter regarding the revisional power of the Courts. In the said case the Supreme Court held –
“Even assuming that the High Court was exercising jurisdiction Under Section. 439, in our opinion, the present was not a case for interference by the High Court. The jurisdiction of the High Court is to be exercised normally Under Section. 439, Criminal Procedure Code, only in exceptional cases, when there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice….”
10. In Akalu Ahir v. Ramdeo Ram, , relying on the case of Amar Chand (supra), the Supreme Court observed thus –
“…It is not expected to act under Section. 435, 439, Cr. P. C. as if it is a hearing on appeal in spite of the wide language Under Section 435 which empowers it to satisfy itself as to the correctness, legality or propriety of a finding, sentence or order and as to the regularity of any proceeding and also in spite of the fact that under Section 439 it can exercise inter alia the power conferred on a court of appeal under Section 423, Cr. P. C. The power being discretionary, it has to be exercised judiciously, and not arbitrarily. Judicial discretion, as has often been said, means a discretion which is informed by tradition, methodised by analogy and disciplined by system. In Amar Chand v. Shanti Bose, , this Court said that normally the jurisdiction of the High Court under Section 439, Cr. P. C. is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on point of law and there has consequently been flagrant miscarriage of justice. In the background of the position just stated a private complainant can only claim a right, in common with all aggrieved parties in a criminal proceeding, to invoke the revisional jurisdiction of the High Court for redress against miscarriage of justice arising from an erroneous order of acquittal. The High Court’s power in such cases is circumscribed by the provisions of Sections 417 and 439, Cr. P. C. and also by the fundamental principles of our criminal jurisprudence. It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial Court in the course of trial, that the High Court is empowered to set aside the order of acquittal and direct the re-trial of the acquitted accused persons. From the very nature of the power, it should be exercised in exceptional cases and with great care and caution. Trials are not to be lightly set aside when such orders expose the accused persons to a fresh trial with all its consequential harassment.”
Again in another decision in State of Orissa v. Nakul a Sahu, . the Supreme Court relying on Amar Chand (supra) and Akalu (supra) held that in spite of the fact that under Section 439 of the Code it could exercise inter alia the power conferred on a court of appeal under Section 432 of the Code the High Court was not expected to act under Section 435 or Section 439 as if it was hearing an appeal. The power being discretionary, it had to be exercised judiciously and not arbitrarily or lightly.
11. Recently in Janata Dal v. H. S. Chowdhary, , the Supreme Court held that the object of the revisional jurisdiction under S, 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.
13. In the present case the Sessions Judge appreciated the evidence differed with the views expressed by the trial Court and observed thus –
“On perusal of the statements of the witnesses recorded in this case I find that the 1st party has got a consistent case that he has possessed the D. L. from 1983 and since then he is possessing the same till he was dispossessed on 20-2-94….”
On going through the impugned judgment I find that the Sessions Judge thoroughly appreciated the evidence like that of a Court of appeal and substituted his own judgment. There is no reference to any miscarriage or illegality or perverse finding. Therefore, the impugned judgment cannot sustain in law. I, therefore, set aside the impugned judgment and remand the case to the Sessions Judge for writing the judgment strictly in accordance with law laid down by the Apex Court as referred to above. It must be done as early as possible, at any rate within a period of two months.
