B.K.Rathi - (1.) THIS is a revision under Section 397/401, Cr. P.C. against the order dated 12.10.1998 passed by the Vth Additional Sessions Judge, Kanpur Nagar in Criminal Revision No. 60 of 1997.
(2.) I have heard Sri S. M. Dayal, learned counsel for the revisionist and Sri R. B. Sahai, learned counsel for the opposite party No. 2. The facts giving rise to this revision are as follows : A report was submitted by the police for taking action under Section 145, Cr. P.C. regarding first floor portion of House No. 119/501 Darshanpurwa, Kanpur Nagar. It was reported by the police that there is a dispute between Daya Ram Sharma and Balram Srivastava and on its basis the proceedings under Section 145, Cr. P.C. started, in which Balram Srivastava has stated that he has no concern with the house. One Sri Sunil Kumar Srivastava moved an application that he is in possession of the house and he be impleaded as a party. His request was refused and he was not impleaded as a party and was not allowed to produce evidence. Thereafter, ex-parte evidence of opposite party No. 2, Daya Ram Sharma was recorded. However, the learned Magistrate considering the circumstances ordered that the local inspection appears to be necessary and directed the Tehsildar to make local inspection and to report regarding possession by an order dated 5.5.1997. Against that order, opposite party No. 2 preferred the above criminal revision, which was allowed and opposite party No. 2 was held to be in possession. Aggrieved by it, the present revision has been preferred.
(3.) THERE is no provision for making local inspection in Section 145, Cr. P.C. The possession cannot be ascertained by way of local inspection. THEREfore, the order of the learned Magistrate directing the Tehsildar to make local inspection to ascertain possession was wholly illegal. That order was rightly set aside. It is true that the revisional court should not assess the evidence and record the finding of possession and should have sent back the matter to the learned S.D.M. However, in this case there was only evidence of possession of opposite party No. 2. No assessment of evidence was required before the Additional Sessions Judge. The learned Additional Sessions Judge rightly ordered that opposite party No. 2 is in possession of the disputed house.;