Full Judgment Text
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PETITIONER:
H.P GUPTA
Vs.
RESPONDENT:
MANOHAR LAL AND ORS.
DATE OF JUDGMENT03/11/1978
BENCH:
TULZAPURKAR, V.D.
BENCH:
TULZAPURKAR, V.D.
PATHAK, R.S.
CITATION:
1979 AIR 443 1979 SCR (2) 208
1979 SCC (2) 486
ACT:
Criminal Procedure Code (Act 11 of 1974) 1973 Scope of
sec. 456(2)- Whether the Court of appeal after having
disposed of the appeal has the power to order restoration of
possession of immovable property ?.-Construction of the
words "while disposing of the appeal, reference or revision"
in S. 456 of the Code.
HEADNOTE:
Respondents 1 to 4 were convicted by a Metropolitan
Magistrate under S. 447 I.P.C. for trespassing and taking
forcible possession of the immovable property, which was in
possession of the appellant. The said conviction was
confirmed by the Court of Sessions. As the Magistrate did
not pass any order for restoration of possession under s.
456 (1) Crl. P.C., the appellant made an application two
weeks after the confirmation of the conviction to the
Appellate Court for restoration of possession of the
property under s. 456 (2)Crl. P.C. which was ordered. But
the Delhi High Court while allowing the application under
Art. 227 of the Constitution r/w s. 482 Crl. P.C. made by
the respondents 1 to 4 set aside the order of restoration of
possession holding that "the language of sub-s. (2) of s.
456 Cr. P.C. is plain and unambiguous and leaves no doubt
that the Court of appeal, confirmation, or revision has no
power to pass any order of restoration after the appeal,
reference or re vision has been disposed of". The
construction placed by the High Court on the words "while
disposing of the appeal, reference or revision" occurring in
s. 456 (2) Cr. P.C. was challenged by the appellant.
Allowing the appeal by special leave, the Court
^
HELD: (1) The appellate or revisional Court acting
under s. 456 (2) will have jurisdiction or power to pass the
order for restoration of possession at any time but it has
to be exercised with discretion within reasonable time of
the disposal of the appeal, reference or revision. [213G-H,
214A]
(2) The language of sub sec. (2) of Section 456 Cr.
P.C. clearly shows that the same is applicable to a case
where a conviction has been recorded by the trial Court and
the trial Court has through mistake or inadvertence omitted
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to make an order for restoration of possession of immovable
property to tho
complainant or has refused to pass such order either
because the offence was not attended by criminal force or
show of force or by criminal intimidation or because the
application in that behalf was made after expiry of 30 days
and an appeal or revision either against the conviction or
the order refusing restoration has been preferred; in such a
case sub-s. (2) provides that the appellate Court or the
revisional Court while disposing of such appeal or revision
may make an order restoring possession of the immovable
property to the complainant [213D-F]
3. Under Sub. sec (1) of Section 522 of the 1898 Code,
the Trial Court could order restoration of possession "when
convicting such person or at any
209
Time within one month from the date of the conviction"
whereas under the new s. 456 the limitation of one month
has been relegated to a proviso to sub-s. (1) of s. 456.
Sub-s. (2) of the present s. 456 corresponds to old s.
522(3), but there has been a change in the phraseology with
a view to resolve the conflict of views between various High
Courts that obtained under the old Code on the question
whether the limitation of 30 days was applicable to the
Court of appeal, reference or revision. [211E-F, 212A-B]
The change in phraseology clearly suggests that
Parliament did not intend to prescribe any limitation on the
powers of the appellate Court or revisional Court; the words
are not "when convicting" or "when upholding the conviction"
but the words are "while disposing of the appeal, reference
or revision" and these would mean in continuation of the
disposal of the appeal, reference or revision and these
words cannot be regarded as importing a limitation on the
power to effect that such order must be incorporated in the
body on the judgment disposing of the appeal, reference or
revision. [2l3F-G]
Abdul Mannan and Ors. v. Taiyab Ali A.I.R. 1947 Cal 390
Krishnan Moothan v. V. K. A. Krishnankutty Moothan A.I.R.
1960, Kerala 348, Nihal Singh v. Emperor A.I.R. 1939
Allahabad 662 Basanta Kumar Maity v. Kenaram Maity A.I.R.
1953 Cal. 393 Fida Hussain . Salfaraz Hussain A.I.R. 1933
Patna 617 and Savlaram Sadoba Navle v. Dhyaneshwar Vishnu
Chinke, A.I.R. 1942 Bom 148. referred to
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
38 of 1976.
(From the Judgment and order dt. 25-9-75 of the Delhi
High Court in original Misc. Main No. 118 of 1975).
R. L. Kohli and S. K. Sabharwal for the appellant.
Jairam Singh and N. S. Das Behl for the respondent.
The Judgment of the Court was delivered by
TULZAPURKAR, J.-The short question raised in this
appeal by special leave is whether the Court of Appeal,
after having disposed of the appeal, has the power to order
restoration of possession of immovable property under s.
456(2) of the Code of Criminal Procedure, 1973 ?
The facts giving rise to the aforesaid question are
briefly these: Respondents 1 to 4 were convicted by a
Metropolitan Magistrate under s. 447 I.P.C. for trespassing
and taking forcible possession of the immovable property
which was in the possession of the appellant Shri H. P.
Gupta. The Magistrate, however, did not pass any order for
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restoration of possession under sub-s. (1) of s. 456 Cr.P.C.
The respondents filed an appeal to the Court of Sessions
against their conviction which was dismissed by the
Additional Sessions Judge, New Delhi on January 6, 1975. Two
weeks later the appellant made an application to the
Appellate Court for restoration of possession of the
property
210
under s. 456 (2) of Cr. P.C. and the learned Additional
Sessions Judge ordered its restoration to him on February 1,
1975. The respondents moved the Delhi High Court under
Article 227 of the Constitution read with s. 482 Cr. P. C.
being Criminal Miscellaneous Petition No. 118 of 1975,
challenging the said order of the Additional Sessions Judge
on the ground that the Appellate Court had no jurisdiction
or power to pass the order after disposing of the appeal.
The High Court set aside the impugned order holding that
"the language of sub-s.(2) of s.456 Cr. P.C. is plain and
unambiguous and leaves no doubt that the Court of appeal,
confirmation, or- revision has no power to pass any order of
restoration after the appeal, reference or revision has been
disposed of." The construction placed by the High Court on
the words "while disposing of the appeal, reference or
revision" occurring in s.456(2) Cr. P.C. is being challenged
by the appellant before us in this appeal.
Counsel for the appellant raised a two-fold contention in
support of the appeal. In the first place he contended that
an appeal was a continuation of the original trial by the
Magistrate and the Court of Appeal would possess all the
powers of the trying Magistrate and if the trying Magistrate
could order restoration of the possession of the immovable
property under proviso to sub-s. (1) of s.456 Cr. P.C.
within one month after the date of conviction, the Appellate
Court must be held to posses similar power and it was
pointed out that in the instant case the Appellate Court had
ordered restoration of possession of the property in
question to the appellant within one month from the date
when the respondents’ convictions were confirmed in appeal.
Secondly, he contended that unlike the trial Court where a
limitation of 30 days has been prescribed under proviso to
sub-s. (1), no period of limitation is prescribed so far as
the powers of Appellate Court under sub-s.(2) of s.456 Cr.
P.C. are concerned, which means that the Appellate Court can
pass an order for restoration of possession at any time,
though within reasonable time of recording or confirming the
conviction after having been satisfied that the offence was
attended by criminal force or show of force or by criminal
intimidation. In any event, he contended that the phrase
"while disposing of the appeal, reference or revision" occur
ring in sub-s. (2) of s.456 Cr. P.C. cannot be interpreted
to mean that the order of restoration of possession must
form part of the judgment disposing of the appeal, reference
or revision as that was not the intention of the Legislature
when it changed the phraseology of the equivalent provision
of the old Code of 1898. On the other hand, counsel for the
respondents laid considerable stress on the words "while
disposing of the appeal, reference or revision" occurring in
sub-s. (2) of s.456 Cr. P.C. and contended that these words
imported a limitation on the power of the Appellate or
Revisional Court to pass the order for
211
restoration of possession at the time of the disposal of the
appeal, reference or revision and such Court could not do so
after the disposal of the appeal, reference or revision.
In order to determine the question raised before us it
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will be necessary to consider the equivalent provision of
the old Code of 1898 which was contained in s. 522 thereof.
Section 522 ran thus:-
"522. Power to restore possession of immovable
property.-(1) Whenever a person is convicted of an
offence attended by criminal force or show of force or
by criminal intimidation and it appears to the Court
that by such force or show of force or criminal
intimidation any person has been dispossessed of any
immovable property, the Court, may, if it thinks fit
when convicting such person or at any time within one
month from the date of the conviction order the person
dispossessed to be restored to the possession of the
same.
(2) No such order shall prejudice any right or
interest to or in such immovable property which any
person may be able, to establish in a civil suit.
(3) An order under this section may be made by any
Court of appeal, confirmation, reference or revision."
It will appear clear that under sub-s. (1) of aforesaid
provision the trial Court could order restoration of
possession "when convicting such person or at any time
within one month from the date of the conviction" whereas
under the new s. 456 the limitation of one month has been
relegated to a proviso to sub-s. (1) of s.456. Sub-s. (2) of
the present s.456 corresponds to old s.529 (3), but there
has been a change in the phraseology and the reasons for
such change have been explained ,. the Law Commission in its
41st Report in para 43.24 thus:
"43.24. Sub-section (3) of section 522 provides
that an order under sub-section (1) may be made by any
Court of appeal, confirmation, reference or revision.
This is to me.. t cases where the trial Court has
failed to make an order under sub-section (1) and it
appears to the Court of appeal or revision that such an
order ought to be made in the interests of justice.
There is a conflict of decisions as to whether the
period of one month from the date of the conviction
which is mentioned in sub-section (1) also applies to
the Court of appeal or revision. This conflict should
be set at rest by a slight re-wording of sub-section
(3) indicating that the Court of appeal, confirmation,
reference or revision may make an
212
order while disposing of the appeal, reference or
revision, as the case may be."
It will thus appear clear that with a view to resolve the
conflict of views between various High Courts that obtained
under the old Code of the question whether the limitation of
30 days was applicable to the Court of appeal, reference by
revision the phraseology was altered while enacting the new
provision. The Calcutta High Court Abdul Mannan and Ors. v.
Taiyab Ali (1) and the Kerala High Court Krishnan Moothan v.
V. K. A. Krishnakutty Moothan(2) had taken the view that the
Court of appeal, confirmation, reference or revision acting
under s. 522(3) must pass the order of restoration of
possession when upholding the conviction or at any time
within one month from the date of the order in appeal,
reference or revision upholding the order of conviction.
This was contrary to the view taken by the Allahabad High
Court in Nihal Singh v. Emperor(3) where it was held that
there was no limitation of one month from the date of
conviction for passing the order under sub-s. (3) of s. 522
as there was for an order under sub-s. (1) and, therefore,
where an order for restoration of possession of the
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immovable property was passed by the Magistrate more than
one month after the conviction under s. 447 I.P.C., the High
Court in revision could set aside that order and itself pass
an order for the restoration of possession. In a later case
Basanta Kumar Maity v. Kenaram Maity(4) the Calcutta High
Court took the view that the Sessions Judge as a Court of
Reference has power to pass an order under s. 522 even after
one month of conviction and there was nothing to prevent his
validating the order of the Magistrate (passed beyond one
month of the conviction which was a just order and the
Sessions Judge not having done so, the High Court, as a
Court of revision, had power under s. 522 to make much an
order. In Fida Hussain v. Sarfaraz Hussain(5) the Patna High
Court took view that there was nothing in s. 522(3) to limit
the jurisdiction of an appellate Court to the passing of an
order within one month either of the original conviction or
the appellate order and that it was left tn the discretion
of the appellate or revisional Court, not to exercise its
power under this section in cases where there has been undue
or excessive delay in moving the Court for its use: in other
words the appellate or revisional Court will use its
discretion in exercising power within reasonable time. In
Savlaram Sadoba Navle v.
(1) A.I.R. 1947 Cal 390.
(2) A.I.R. 1960 Ker. 348.
(3) A.I.R. 1939 All. 662.
(4) A.I.R. 1953 Cal. 393.
(5) A.I.R. 1933 Patna 617.
213
Dhyaneshwar Vishnu Chinke (1) the Bombay High Court took the
view that although there be not before the Court any appeal
or revision against the conviction of the accused, and the
Magistrate had rightly dismissed the application for an
order for possession under s. 522(1) because it was made
more than a month after the conviction, still the High Court
can under sub-s. (3) of s. 522 make an order for possession
in a proper case in revision against the order dismissing
the application for possession and in taking this view the
Bombay High Court followed the view of the Patna High Court
in ILR 12 Patna 787 and ILR 4 Patna 438 and of the Allahabad
High Court in AIR 1939 All. 662. It was with a view to set
at rest the aforesaid conflict of views that the Law
Commission recommended the change in the phraseology and the
Parliament accepting the recommendation enacted sub-s. (2)
of s. 456 thus:
"456(2) Where the Court trying the offence has not
made an order under sub-section (1), the Court of
appeal, confirmation or revision may, if it thinks fit,
make such order while disposing of the appeal,
reference or revision, as the case may be."
The language of sub-s. (2) clearly shows that the same is
applicable to a case where a conviction has been recorded by
the trial Court and the trial Court has through mistake or
inadvertence omitted to make an order for restoration of
possession of immovable property to the complainant or has
refused to pass such order either because the offence was
not attended by criminal force or show of force or by
criminal intimidation or because the application in that
behalf was made after expiry of 30 days and an appeal or
revision either against the conviction or the order refusing
restoration has been preferred; in such a case sub-s.. (2)
provides that the appellate Court or the revisional Court
while disposing of such appeal or revision may make an order
restoring possession of the immovable property to the
complainant. The change in phraseology clearly suggests that
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Parliament did not intend to prescribe any limitation on the
powers of the appellate Court or revisional Court: the words
are not "when convicting" or "when upholding the conviction"
but the words are "while disposing of the appeal, reference
or revision" and these would mean in continuation of the
disposal of the appeal, reference or revision and these
words cannot be regarded as importing a limitation on the
power to the effect that such order must be incorporated in
the body of the judgment disposing of the appeal, reference
or revision. In other words, the appellate or revisional
Court acting under s. 456(2) will have jurisdiction or power
to pass
(1) A.I.R. 1942 Bom. 148.
214
the order for restoration of possession at any time but it
has to be exercised with discretion within reasonable time
of the disposal of the appeal, reference or revision.
In our opinion the view taken by the High Court is
clearly erroneous. We accordingly allow the appeal, set
aside the impugned order passed by the High. Court on
September 25, 1975 and restore that passed by the Additional
Sessions Judge on February 1, 1975.
S.R. Appeal allowed.
215