KANDRAKOTA LAKSHMAMMA Vs. STATE OF A P

JUDGEMENT

(1.) This revision case which came up before our learned brother Muktadar, J., is referred to us to decide the question whether the trial Magistrate ceases to have jurisdiction to make any order concerning possession of immovable property under Section 456(1) Cr. P. C. after the lapse of one month from the date of conviction of the accused even in cases where the petition to be restored to possession was filed before him within one month from the date of the conviction.

(2.) The facts which form the background for this revision can be briefly noticed. The dispute relates to a one-third share in house property which originally belonged to the petitioner. Sometime prior to 1967, she sold one-third share to one Ramanujamma who along with her son mortgaged that share on 12-12-1967. Ramanujamma later sold away her share to her brother Narasaiah on 4-7-1970 and Narasaiah in his turn sold that share to A1 on 14-5-1976. Ramanujamma has given a Registered notice dated 28 7-1976 alleging that the sale by her in favour of her brother was nominal, and that notwithstanding the sale still she was continuing to be in possession of the property. A1 first destroyed the Eastern wall of the house, concerning which Ramanujamma filed a police report. On hearing that Ramanujamma gave such police report, A1 destroyed the Southern wall of the house as well. When Ramanu" jamma was away, the petitioner was allegedly assaulted and removed from the house. The petitioner filed C. C. No. 177 of 1977 alleging various offences, but the respondents were convicted only for the offence under Section 352, I PC on 13-3-1978. Consequent on that conviction, the petitioner filed Crl, M. P. No. 307/78 on 5-4-1978 under Section 456 (I) Cr. P,C. requesting the Magistrate to direct her to be put back Into possession of the property. That petition ultimately came up before the Magistrate for disposal on 7-7-1978 and the question arose whether after the expiry of one month from the date of conviction, the Magistrate had still jurisdiction to order possession to be restored to the petitioner. The learned Additional Judicial First Class Magistrate, Gudivada, held that he did not lose jurisdiction and therefore passed the order dt. 7-7-1978 directing the respondents to restore possession of the one- third portion of the house to the petitioner. The respondents went in appeal before the Sessions Judge, Krishna, in Crl. Appeal 127/78. The learned Sessions Judge held that the application for restoration of possession is barred. The petitioner thereupon came to this court in revision. As the question involved is one of law, it has been referred to a Bench.

(3.) The proviso to Section 456 (1), Cr.P.C. leaves no doubt what- so-over that such order of restoration cannot be made by the Court more than one month after the date of the conviction. There is no dispute that by 7-7-78 the period of one month had already elapsed, and the question is whether because the petition for restoration was filed within one month from the date of conviction, the Magistrate had the jurisdiction to pass an order for restoration on any day beyond the period of one month from the date of conviction. A plain reading of the Section leaves no alternative but to hold that the Magistrate has become functus officio and had no longer any jurisdiction to pass such order of restoration after the expiry of one month from the date of conviction. There was a conflict of views at one time regarding the power of the appellate Court in directing such restorations, when similar orders were passed in disposing of tha appeals against convictions. That conflict is now set at rest by the decision reported in H.P. Gupta V. Manohar Lal (I) 1979 Crl. L.J., 199. The Supreme Court has expressed the view that so far as the Court of appeal or revision are concerned they can exercise the power to order restoration either while disposing of the appeal or revision or even after the expiry of a period of one month from the date of the appellate order. We are here concerned with the jurisdiction of the Magistrate, and the view expressed in Subra- mania V. Ganeshan (2), A.I.R. 1950 Madras 665, which followed an earlier decision ot the Madras High Court in Maria Filial V. Ramanatham Chettiar (3) 1928 Madras Weekly Notes, 557, is that so far as the Magi- strate is concerned, he ceased to have any jurisdiction to pass an order after the expiry of one month from the date of conviction. The High Courts of Patna, Allahabad, Bombay and Nagpur have no doubt taken a different view, but having regard to the view expressed by the Madras High Court by which we are bound, the Magistrate had no longer any jurisdiction to direct restoration after the expiry of one month from the date of conviction. As the point involved in the revision is the same question referred to this Bench, the point is answered accordingly, and the revision case is dismissed.