Hon'ble Mr. Justice Deepak Gupta
1
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1104 OF 2011
Mahesh Dube ...Appellant(s)
Versus
Shivbodh and Ors. ...Respondent(s)
J U D G M E N T
Deepak Gupta, J.
1. Shankar Prasad Dube, father of the respondents was a
tenant of Prayag Prasad Dube, father of the appellant. A suit for
eviction on account of nonpayment of rent was filed by Prayag
Prasad Dube against Shankar Prasad. The suit was decreed. In
execution of the decree, possession of the house was delivered to
Prayag Prasad Dube on 26.11.1985, and he, put his own lock on
the house. On the night intervening on 26.11.1985 and
27.11.1985, the respondents herein along with their father
Shankar Prasad Dube and grandmother trespassed into the
2
house of Prayag Prasad Dube and forcibly took possession of the
house. Thereafter, Prayag Prasad Dube lodged a report against
the respondents and their father and grandmother Gomti Devi.
Charges were framed against the accused. Gomti Devi died
during the pendency of the trial and the respondents along with
their father Shankar Prasad Dube were convicted by the Trial
Court under Section 448 of I.P.C. The Trial Court while
convicting the respondents and their father also directed that the
case propertybe handed over to the complainant.
2. Thereafter, the respondents and their father filed an appeal
before the Sessions Judge which was dismissed on 18.11.1997.
After dismissal of the appeal, the father of the present appellant
filed an application under Section 456 Cr.P.C. for handing over
the possession of the property to him. The Trial Court rejected
the application only on the ground that it had been filed beyond
the period of 30 days from the date of order of the Appellate
Court. ARevision Petition was filed,which was dismissed. A
petition under Section 482 Cr.P.C. was filed before the High
Court and the same was also dismissed on 19.09.2008. Hence,
this appeal.
3
3. Section 456 of the Cr.P.C. reads as follows:
“456. Power to restore possession of
immovable property.
(1) When 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
intimidation, any person has been dispossessed of
any immovable property, the Court may, if it
thinks fit, order that possession of the same be
restored to that person after evicting by force, if
necessary, any other person who may be in
possession of the property:
Provided that no such order shall be made by
the Court more than one month after the date of
the conviction.
(2) Where the Court trying the offence has not
made an order under subsection (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.
(3) Where an order has been made under subsection (1), the provisions of section 454 shall
apply in relation thereto as they apply in relation
to an order under section 453.
(4) No order made under this section shall
prejudice any right or interest to or in such
immovable property which any person may be
able to establish in a civil suit.”
A bare reading of the SubSection 1 of Section 456 clearly
indicates that the Trial Court can pass an order for restoration of
the possession of the property to the person who was forcibly
dispossessed. The proviso no doubt lays down that no such order
shall be passed after one month of the date of conviction.
4
4. In this case, the Trial Court while convicting the accused
had passed an order directing restoration of the property to the
complainant Shankar Prasad Dube. In the order, it has been
stated that the property in the case be handed over to the
petitioner Prayag Prasad Dube. Keeping in view of the nature of
the dispute, there is no other case property except the property
whose possession was forcibly taken by the respondents and their
father.Therefore, no separate order was required directing
restoration of possession since such an order had been passed
while convicting the respondents and their father.
5. It seems that after the appeal was filed, the order directing
restoration of the possession was not given effect to. We may also
make reference to SubSection 2 of Section 456 Cr.P.C. which
provides that if the Court trying the offence has not made such
an order, the Court of appeal, confirmation or revision can also
make such an order while disposing of the proceedings pending
before it. No limitation has been provided for the higher courts to
make such order. In this behalf, reference may be made to the
5
judgment of this Court in H. P. Gupta v. Manohar Lal AIR
1979 S.C. 443.
6. In the present case, after the appeal filed by the respondents
and their father was dismissed, the father of the present
appellant applied for handing over possession to him in terms of
the order already passed by the Trial Court while convicting the
respondents and their father, in which eventually, the limitation
of 30 days would not apply. It would apply only if the Trial Court
had not passed any order in respect of the case property while
convicting the accused.
7. In view of the above discussion, the present appeal is
allowed. The order of the High Court in Miscellaneous Criminal
Case No.7799 of 1998 dated 19.09.2008, the order of the
Sessions Court in Criminal Revision No.234 of 1998 dated
02.09.1998, the order of the Trial Court in M. J. C. No.1 of 1998
dated 01.05.1998 are set aside and the respondents are directed
to handover the possession of the property, which is the subject
matter of the case and from which the appellant and his father
were forcibly dispossessed, to the appellant within one month of
6
the service by a certified copy of this order upon the respondents.
The appeal is allowed accordingly in the aforesaid terms. Pending
application(s), if any, stand(s) disposed of.
………………………..J.
(Sanjay Kishan Kaul)
…………………………J.
(Deepak Gupta)
New Delhi
February 12, 2019
