GANESHRAM Vs. SAVITRI

JUDGEMENT

(1.) THIS is a revision petition under section 439 of the Code of Criminal Procedure.

(2.) ON a complaint filed by the non-applicant, the petitioner (hereinafter referred to as the applicant) and four others were tried on a charge under section 448, Indian Penal Code. The case against them was that on 30-6-1967 they had committed house trespass by entering into the house belonging to non-applicant Savitri Bai and had dispossessed her of the same. The applicant and the other accused adjured their guilt. They were however convicted by the trial Magistrate. The Magistrate further gave a direction under section 522 Criminal Procedure Code that the non applicant shall be restored to possession of the house. The applicant and others preferred an appeal which was allowed by the Additional Sessions Judge Shivpuri, and they were acquitted. But the learned Judge maintained the order relating to delivery ot possession of the house to the non-applicant. Being aggrieved by the direction relating to delivery of possession the applicant has come up in revision before this Court.

(3.) THE order under sub-section (1) of section 522 can be passed by the trial Court either at the time of conviction or at any time within one month from the date of conviction. Where the order is passed after the conviction it is an independent order and as no appeal is provided against such an order it can only be revised by the High Court in exercise of its revisional jurisdiction. But where the order is passed by the trial Court at the time of conviction it being an order incidental to conviction, the appellate Court, in my view, is competent to set it aside while acquitting the accused in an appeal against conviction in exercise of its powers conferred by clause (d) of sub- section (1) of section 423, Criminal Procedure Code. In the Allahabad case referred to above their Lordships were dealing with a case in which the order under section 522, Criminal Procedure Code was passed subsequent to conviction, and, therefore, the observations relating to jurisdiction of the appellate Court appear to relate to a case of this nature only. I, however, agree with the view expressed in that case that an order under section 522 passed by the trial Magistrate need not be automatically set aside as a result of the acquittal.