IN THE HON'BLE HIGH COURT OF CHaATTISGARH AT BIIASPUA -^ CR.M.P. N0. /2011 PETITIONER APPLICANT :.•» ?y-,^ ^ ••<'^^> >-^^ '-? RESPONDENT Bhinsent, S/o. Khasaru, aged about 8s years, R/o. village Jhagarpur, Tahsil & Police Station Bagicha, District Jashpur (C.G.) Through: his Power of Attorney holder- Manorama Minj, W/o. Amarus Minj, aged about 45 years, R/o. village Jhagarpur (Kharidand), Tahsil & Police Station Bagicha, District Jashpur CC.G.) VERSUS Fidilius, S/o. Chittho, aged about 60 years, R/o. village Jhagarpur, Tahsil & Police Station Bagicha, District Jashpur (C.G.) PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE CODE ^'^f^ '"svxsxS JUGH CQDRT OF CBOIAmBGARH : BBASPUR SmOI^KBNCIL: HON'BUE SHRI MANIMDR& MOHAN SHRIVASTAVA.J. PBTmONlER RBSPONDBNT Cr.M.P. No. 152/2011 Bhinsent Versua Fidillus PetiUon under Sectlon 482 of the Cr.P.C. Aopearance: Sbri Manoj Paraigpe, coi.insel for the petitioner. ORAL-ORDEai (Passedoa 19.7.2011) Heard cn admission. 1. Thls petition under Section 482 of the Cr.P.C. has been liled by fhe petitioner aggrieved by order dated 6.12.2010 passed by the Sessions Judge, dlsmissn^ fhe petitioner's revision agajnst order dated 23.8.2010 passed by the Sub DMsional Magistrate in exercise ofits powers under Section 145 ofthe Cr.P.C. 2. Leamed counsel for (he petitioner ai^ued that fhe finding of possession recorded by fhe Magistrate aad afiirmed by fhe revlsional Court is higbty perverse and contraiy to evidence on record. Next submission of leamed counsel for the petitioner is that wifhout proper appreciation of overwhetaiing evidence led by the petitioner, fhe Court below, swayed by the fact fhat Bfainsent hlmseU' did not examine himself, have recorded a findmg agamst -2- i6- him and m domg so, the Court below have not cwrectly applied the principles with regard to appreciation of evldence. Next submission of leamed counsel for fhe petltioner is that respondent himsetf has admltted In his evidence fhat the petitioner remained in contmuous possession of the property from 2001 onwards and fhis aspect has been igaored by fhe Court before comtag to the conclusion wifh regard to QXK possession offhe respondent 3. A perusal of the order passed by the Magistrate shows that fhe M^istrate has considered fhe case of botti fhe parties and also discussed fhe evidence led by the parties. After going (brough the evideace of fhe parties and material placed on record, fhe Magistrate has leaned 3n favour of tfae respondent to record hls possession based on fhe evldence led by respondent, cimsidermg that Bhinsent himself was not examined and (hat polfce report is against the petitioner and shows the possession of fhe respondent Therefore, I am not mclined to accept tihe contention of leamed counsel for the petitioner fhat the finding is contraiy to evldence on record. 4. I have gone throu^i the evidence led by bofh fhe parties. Bofh fhe parties have asserted fhrougti fheir witnesses fhat fhey were in possession and, fherefore, law required the Magistrate to appreciate fhe evidence on record and accept one and reject fhe version of fhe ofher. Thls exercise has been undertakai by the Magistrate after gomg fhrough fhe evidence on record. In a -3. petition under Section 482 of Cr.P.C., ftiis Coiut would not mterfere wifh the findings i^corded imless fhey are absolutely perverse or sufler fi-om apparent error or when there is abuse of the process oflaw or serious mlscarriage ofjustlce. 5. I am also not inclmed to accept fhe suhmlssion of leamed coiu^el for the petitioner fhat the Court below adopted a wrong approach on prindples in retyu^ upon the evidence led by respondent on the ground fhat Bhinsent has not been examtaed. Atter going throu^i (he order passed by the Me^istrate, what I find is that fhe Ma^strate has considered this as one of fhe cireumstances before placing reUance upon the evidence led by fhe respondent. It is not (tiat oiily on (hat ground fhe Magistrate has rejected Ihe verslon of the petltioner. Morcover, in proceedmgs under SectiDn 145 of Cr.P.C., the Ma^strate is oiriy concemed wltfa iactum of fhe possession and not of the titie. The report of fhe police also went agamst the petitioner and stated (hat respondent was in possession. Therefore, this Court would not sit as an AppeUate Aufhorily to re-assess the endence on record. I am, Iherefore, not inclined to interfere wlfh ttie order passed by fhe Coiuts below. 6. The petitlon deserves to be dismlssed and is aocordingly dismissed at the adnaission stage. Sd/- Man^aM^ Stirivastava judge PrEEreen