H.P. GUPTA versus MANOHAR LAL A.ND ORS.

Citation: [1979] 2 S.C.R. 208 · Decided: 03-11-1978 · Supreme Court of India · Bench: V.D. TULZAPURKAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

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B 
c 
]) 
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208 
H.P. GUPTA 
v. 
MANOHAR LAL A.ND ORS. 
November 3, 1978 
[V. D. TULZAPURKAR AND R. S. PATHAK, JJ.] 
Criminal Procedure Code, (Act II of 1974), 1973 Scope of Sec. 456(2)-
Whether the Court of appeal. after having disposed of the appeal has the 
power lo order restoration of possession of itnmovable property ?.-Construc-
tion of the words "while disposing of the appeal, reference or revisionu in 
S. 456 of tlze Code. 
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 possession of the appellant. The said conviction was 
confirmed by the Court of Sessions. 
As the Magistrate did not pass any order 
for restoration of possession under s. 456 (1) Crl. P.C., the appellant made 
an application two weeks after the confirmation of the conviction to the Appelw 
late Court for restoration of possession of the property under s. 456 
(2) 
Crl. P.C. which was ordered. 
But the Dellhi High Court while allO\ving the 
application under Art. 227 of the Constitution r/w s. 182 Cr!. P.C. made by 
the respondents 1 to 4 set aside the order of restoration of possession holding 
that "the language of sub-<i. (2) of s. 456 Cr. P.C. is plain and unambiguous 
and leaves no doubt that the Court of appeal, confirmation, or revision has 
no power to pass any order of restoration after the appeal, reference or re~ 
vision has been disposed of". The construction placed by the High Court on 
the words "while disposing of the appeal, reference or revision" occurring in 
s. 456 (2) Cr. P.C. was challenged by the: appellant. 
Allowing the appeal by special leave, the Court 
HELD: (1) The appellate or revisional Court acting under s. 456 (2) will 
have jurisdiction or power to pass the ord1~r for restoratioii of posseision at 
F 
any time but it has to be exercised with discretion within reasonable time of 
the disposal of the appeal, reference or revision. 
[213G-H, 214A] 
(2) The language of sub sec. (2) of Section 456 Cr. P.C. dearly shows 
that the same is applicable to a case where a conviction has been recorded by 
the trial Court and the trial Court has through mistake or inadvertence omitted 
to make an order for restoration of possession of immovable property to the 
G 
complainant or has refused to pass such order either because the offence was , 
not attended by criminal force or show of force 0:r by criminal intimidation or 
because the application in that behalf was made after expiry of 30 days and 
an appeal or revision either against the conviction or the order refusing resto-
ration has been preferred; in such a case sub-s. (2) provides that the appel-
late Court or the revisional Court while disposing of such appeal or revision 
may make an order restoring possession oJ[ the 
immovable 
property to the 
H 
complainant. [213D-F] 
' f 
3. Under Sub. sec (1) of Section 522 of the 1898 Code, the Trial Court 
could order restoration of possession "when convicting such person or at any 
• 
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• 
H. P. GUPTA v. MANOHAR LAL (Tulzapurkar, J.) 
269 
time within one month from the date of the conviction" whereas under the 
new s. 45'5 the limitation of one month has been relegated to a proviso to 
sub-s. (I) of s. 456. Sub-s. (2) of the present s. 456 corresponds to old 
s. 522(3), but there has been a change in the phraseology with a view to 
resolve the conflict of views between various High Courts that obtained undei' 
the old Code on the qu~stion whether the limitation of 30 days was applicable 
to the Court of appeal, reference or revision. [211E-F, 212A-Bl 
The change in phraseology clearly suggests that Parliament did not intend 
to prescribe any limitation on the powers of the appellate Court or revisional 
Court; the words are not "when convicting" or "when upholding the convic-
tion" but 1he \vords are "while disposing of the appeal, reference or revision" 
and these would mean in continuation of the disposal of the appeal, reference 
or revision and these words car.i,,1ot be regarded as importing a limitation on 
the power to effect that such order must be incorporated in the body of the 
judgment disposing of the appeal, reference or revision. 
[213F~G] 
Abdul Mannan and Ors. v. Taiyab Ali, A.l.R. 1947 
Cal 390, Krishnan 
Moothan v. V. K. A. Krishnankutty 1"\1oothan, A.I.R. 1960, Kerala 348, Nihal 
Singh v. Emperar, A.l.R. 1939 Allahabad 662, Basanta Kumar Maity v. Kena-
ram Maily, A.lR. 1953 

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