Case Note & Summary
The dispute arose from a landlord-tenant relationship where the appellant's father, Prayag Prasad Dube, obtained an eviction decree against Shankar Prasad Dube, father of the respondents. Possession was delivered on 26.11.1985, but on the same night, the respondents along with their father and grandmother forcibly trespassed and took possession. A criminal complaint was lodged, and the trial court convicted the respondents and their father under Section 448 IPC, also directing that the case property be handed over to the complainant. The appeal before the Sessions Judge was dismissed on 18.11.1997. Thereafter, the appellant's father filed an application under Section 456 CrPC for restoration of possession, which was rejected by the trial court as being beyond 30 days from the appellate court's order. Revision and Section 482 petitions were dismissed. The Supreme Court held that since the trial court had already passed an order for restoration of possession at the time of conviction, no separate application was required, and the limitation under Section 456(1) proviso did not apply. The appellate court also had power under Section 456(2) to pass such order without limitation. The Supreme Court allowed the appeal, set aside the lower courts' orders, and directed the respondents to hand over possession within one month.
Headnote
A) Criminal Procedure Code - Restoration of Possession - Section 456 CrPC - Limitation - Trial court while convicting accused under Section 448 IPC passed order for restoration of possession to complainant - Application for execution filed beyond 30 days - Held that when trial court itself passes order for restoration, no separate application is required and limitation under proviso to Section 456(1) does not apply - Appellate court can also pass such order under Section 456(2) without limitation (Paras 3-6).
Issue of Consideration
Whether the application for restoration of possession under Section 456 CrPC filed beyond 30 days from the date of conviction is maintainable when the trial court had already passed an order for restoration at the time of conviction.
Final Decision
The Supreme Court allowed the appeal, set aside the orders of the High Court, Sessions Court, and Trial Court, and directed the respondents to hand over possession of the property to the appellant within one month of service of the certified copy of the order.
Law Points
- Section 456 CrPC
- restoration of possession
- limitation period
- appellate court's power
- concurrent findings
Case Details
Criminal Appeal No. 1104 of 2011
Sanjay Kishan Kaul, Deepak Gupta
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Nature of Litigation
Criminal appeal against rejection of application for restoration of possession under Section 456 CrPC.
Remedy Sought
Appellant sought restoration of possession of the property from which his father was forcibly dispossessed.
Filing Reason
The trial court had convicted the respondents for criminal trespass and ordered restoration of possession, but the order was not executed; subsequent application for execution was dismissed as time-barred.
Previous Decisions
Trial court convicted respondents under Section 448 IPC and ordered restoration of possession; Sessions Judge dismissed appeal; application under Section 456 CrPC rejected by trial court as beyond 30 days; revision and Section 482 petitions dismissed.
Issues
Whether the application for restoration of possession under Section 456 CrPC is maintainable when filed beyond 30 days from the date of conviction, given that the trial court had already passed an order for restoration at the time of conviction.
Submissions/Arguments
Appellant argued that the trial court had already passed an order for restoration of possession while convicting the accused, so no separate application was required and limitation did not apply.
Respondents presumably argued that the application was barred by limitation under proviso to Section 456(1) CrPC.
Ratio Decidendi
When a trial court itself passes an order for restoration of possession under Section 456 CrPC at the time of conviction, no separate application is required for execution, and the limitation of one month under the proviso to Section 456(1) does not apply. The appellate court also has power under Section 456(2) to pass such order without any limitation.
Judgment Excerpts
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.
In this case, the Trial Court while convicting the accused had passed an order directing restoration of the property to the complainant... Therefore, no separate order was required directing restoration of possession since such an order had been passed while convicting the respondents and their father.
No limitation has been provided for the higher courts to make such order.
Procedural History
Trial court convicted respondents under Section 448 IPC and ordered restoration of possession on an unspecified date. Appeal to Sessions Judge dismissed on 18.11.1997. Application under Section 456 CrPC filed by appellant's father was rejected by trial court on 01.05.1998 as time-barred. Criminal Revision No.234 of 1998 dismissed by Sessions Court on 02.09.1998. Petition under Section 482 CrPC dismissed by High Court on 19.09.2008. Supreme Court appeal filed and allowed on 12.02.2019.
Acts & Sections
- Indian Penal Code, 1860 (IPC): 448
- Code of Criminal Procedure, 1973 (CrPC): 456, 482
