H P GUPTA Vs. MANOHAR LAL

JUDGEMENT

(1.) 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

(2.) 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 restoration of possession under sub-s. (1) of S. 456 Cr. C. C. The respondents filed an appeal to the Court of Session against their conviction which was dismissed by the Additional Sessions Judge, New Delhi on Jan. 6, 1975. Two weeks later the appellant made an application to the Appellate Court for restoration of possession of the property under Sec. 456 (2), Cr. P. C. and the learned Additional Sessions Judge ordered its restoration to him on Feb. 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 Main No. 118/1975, 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

(3.) 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-section (1) of S. 456, Cr. P. C. within one month after the date of conviction, the Appellate Court must be held to possess 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" occurring 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 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.