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H. P. Gupta v. Manohar Lal And Others
Factual and Procedural Background
Respondents 1–4 were convicted by a Metropolitan Magistrate for the offence of criminal trespass under Section 447 of the Indian Penal Code after they had forcibly taken possession of immovable property that was in the possession of the appellant, Shri H. P. Gupta. While recording the conviction, the Magistrate did not invoke Section 456(1) of the Code of Criminal Procedure, 1973 (CrPC) to restore possession to the appellant.
The respondents filed an appeal before the Additional Sessions Judge, New Delhi. On 6 January 1975 that appeal was dismissed and the convictions were confirmed. Within a fortnight, the appellant moved the same appellate court for restoration of possession under Section 456(2) CrPC. On 1 February 1975 the Additional Sessions Judge ordered that possession of the property be restored to the appellant.
Challenging that order, the respondents invoked Article 227 of the Constitution read with Section 482 CrPC before the Delhi High Court. The High Court set aside the restoration order, holding that the appellate court had no power to act after finally disposing of the appeal. The appellant obtained special leave to appeal to the Supreme Court, giving rise to the present decision delivered by V. D. Tulzapurkar, J.
Legal Issues Presented
- Whether a Court of Appeal, after it has disposed of the appeal, possesses power under Section 456(2) CrPC to order restoration of possession of immovable property that was the subject-matter of the offence.
Arguments of the Parties
Appellant’s Arguments
- An appeal is merely a continuation of the trial; therefore, the appellate court enjoys all powers of the trial Magistrate, including the power of restoration contained in the proviso to Section 456(1) CrPC.
- Section 456(2) prescribes no time-limit for the appellate court, unlike the 30-day limit applicable to the trial court under Section 456(1); hence the appellate court may pass a restoration order at any time, provided it is within a reasonable period after confirming the conviction.
- The phrase “while disposing of the appeal, reference or revision” does not compel incorporation of the restoration order within the judgment itself; the legislative change from the language of Section 522 of the Code of 1898 shows an intent to remove any such limitation.
Respondents’ Arguments
- The words “while disposing of the appeal, reference or revision” impose a temporal limitation; the power can be exercised only at the time the appellate judgment is delivered, not thereafter.
- Because the appeal had already been disposed of on 6 January 1975, the Additional Sessions Judge became functus officio and lacked jurisdiction to pass the restoration order on 1 February 1975.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Abdul Mannan v. Taiyab Ali, AIR 1947 Cal 390 | Held that an appellate court must order restoration, if at all, within one month of conviction. | Cited as an example of the restrictive view that Parliament intended to overrule by changing the language in the 1973 Code. |
| Krishnan Moothan v. Krishnankutty Moothan, AIR 1960 Ker 348 | Same restrictive interpretation as Abdul Mannan. | Used to illustrate the conflict of authority under the old Code. |
| Nihal Singh v. Emperor, AIR 1939 All 662 | Held that the one-month limitation does not bind appellate or revisional courts. | Quoted approvingly to show the view ultimately adopted by Parliament and accepted by the Supreme Court. |
| Basanta Kumar Maity v. Kenaram Maity, AIR 1953 Cal 393 | Recognised power of reference or revision courts to grant restoration beyond one month. | Referred to demonstrate divergent approaches among High Courts. |
| Fida Hussain v. Sarfaraz Hussain, AIR 1933 Pat 617 | Asserted no statutory time-bar; discretion lies with appellate or revisional court to act within a reasonable time. | Relied on for the proposition that absence of limitation permits exercise of power if done reasonably promptly. |
| Savlaram Sadoba Navle v. Dnyaneshwar Vishnu Chinke, AIR 1942 Bom 148 | High Court can order restoration even when the Magistrate’s order is time-barred. | Cited to support a liberal construction of appellate powers. |
| Rameshwar Singh v. King-Emperor, AIR 1925 Pat 689 | Earlier Patna decision supporting discretionary, non-time-bound power under Section 522. | Part of the line of authority favouring absence of limitation that Parliament chose to preserve. |
Court's Reasoning and Analysis
The Supreme Court undertook a comparative analysis of Section 456 CrPC (1973) and its predecessor, Section 522 of the Code of 1898. Under the old Code there existed conflicting High Court rulings on whether the 30-day limit applied to appellate or revisional courts. The Law Commission’s 41st Report had recommended clarifying the provision by allowing such courts to act “while disposing of the appeal, reference or revision.” Parliament accepted that recommendation.
The Court emphasised that the new wording—“while disposing of the appeal, reference or revision”—was deliberately chosen to:
- Ensure that appellate or revisional courts could correct the trial court’s omission or refusal to order restoration.
- Remove any rigid 30-day limitation on the exercise of that power.
Interpreting the phrase, the Court held it means “in continuation of the disposal” and does not mandate that the order be embedded in the judgment itself. The power may therefore be exercised at any time within a reasonable period after the appeal or revision is decided. Because the Additional Sessions Judge acted within a fortnight of affirming the conviction, the intervention was both timely and within jurisdiction.
Consequently, the High Court’s contrary construction was declared “clearly erroneous.”
Holding and Implications
Appeal Allowed. The Supreme Court set aside the Delhi High Court’s order dated 25 September 1975 and restored the Additional Sessions Judge’s restoration order of 1 February 1975.
Implications: The decision affirms that appellate, confirmation or revisional courts possess discretionary power under Section 456(2) CrPC to order restoration of possession even after the formal disposal of the appeal, provided the power is exercised within a reasonable time. The ruling resolves prior conflicts among High Courts and clarifies that no statutory time-bar fetters this jurisdiction.
V.D Tulzapurkar, J.— The short question raised in this appeal by special leave is whether the Court of appeal, after having disposed of the appeal, has the power to order restoration of possession of immovable property under Section 456(2) of the Code of Criminal Procedure, 1973?
2. The facts giving rise to the aforesaid question are briefly these: Respondents 1 to 4 were convicted by a Metropolitan Magistrate under Section 447 IPC for trespassing and taking forcible possession of the immovable property which was in the possession of the appellant Shri H.P Gupta. The Magistrate, however, did not pass any order for restoration of possession under sub-section (1) of Section 456 CrPC. The respondents filed an appeal to the Court of Sessions against their conviction which was dismissed by the Additional Sessions Judge, New Delhi, on January 6, 1975. Two weeks later the appellant made an application to the appellate court for restoration of possession of the property under Section 456(2) CrPC and the learned Additional Sessions Judge ordered its restoration to him on February 1, 1975. The respondents moved the Delhi High Court under Article 227 of the Constitution read with Section 482 CrPC being Criminal Miscellaneous Main No. 118 of 1975, challenging the said order of the Additional Sessions Judge on the ground that the appellate court had no jurisdiction or power to pass the order after disposing of the appeal. The High Court set aside the impugned order holding that “the language of sub-section (2) of Section 456 CrPC 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 revision has been disposed of”. The construction placed by the High Court on the words “while disposing of the appeal, reference or revision” occurring in Section 456(2) CrPC is being challenged by the appellant before us in this appeal.
3. Counsel for the appellant raised a two-fold contention in support of the appeal. In the first place he contended that an appeal was a continuation of the original trial by the Magistrate and the Court of Appeal would possess all the powers of the trying Magistrate and if the trying Magistrate could order restoration of the possession of the immovable property under proviso to sub-section (1) of Section 456 of the CrPC within one month after the date of conviction, the appellate court must be held to possess similar power and it was pointed out that in the instant case the appellate court had ordered restoration of possession of the property in question to the appellant within one month from the date when the respondents' convictions were confirmed in appeal. Secondly, he contended that unlike the trial court where a limitation of 30 days has been prescribed under proviso to sub-section (1), no period of limitation is prescribed so far as the powers of appellate court under sub-section (2) of Section 456 CrPC are concerned, which means that the appellate court can pass an order for restoration of possession at any time, though within reasonable time of recording or confirming the conviction after having been satisfied that the offence was attended by criminal force or show of force or by criminal intimidation. In any event, he contended that the phrase “while disposing of the appeal, reference or revision” occurring in sub-section (2) of Section 456 CrPC cannot be interpreted to mean that the order of restoration of possession must form part of the judgment disposing of the appeal, reference or revision as that was not the intention of the Legislature when it changed the phraseology of the equivalent provision of the old Code of 1898. On the other hand, counsel for the respondents laid considerable stress on the words “while disposing of the appeal, reference or revision” occurring in sub-section (2) of Section 456 of the CrPC and contended that these words imported a limitation on the power of the Appellate or Revisional Court to pass the order for restoration of possession at the time of the disposal of the appeal, reference or revision and such Court could not do so after the disposal of the appeal, reference or revision.
4. In order to determine the question, raised before us it will be necessary to consider the equivalent provision of the old Code of 1898 which was contained in Section 522 thereof. Section 522 ran thus:
“522. Power to restore possession of immovable property.— (1) Whenever 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 criminal intimidation any person has been dispossessed of any immovable property, the Court, may, if it thinks fit, when convicting such person or at any time within one month from the date of the conviction order the person dispossessed to be restored to the possession of the same.
(2) No such order shall prejudice any right or interest to or in such immovable property which any person may be able to establish in a civil suit.
(3) An order under this section may be made by any Court of appeal, confirmation, reference or revision.
It will appear clear that, under sub-section (1) of aforesaid provision, the trial court could order restoration of possession “when convicting such person or at any time within one month from the date of the conviction” whereas under the new Section 456 the limitation of one month has been relegated to a proviso to sub-section (1) of Section 456. Sub-section (2) of the present Section 456 corresponds to old Section 522(3), but there has been a change in the phraseology and the reasons for such change have been explained by the Law Commission in its 41st Report in para 43.24 thus:
43.24 Sub-section (3) of Section 522 provides that an order under sub-section (1) may be made by any Court of appeal, confirmation, reference or revision. This is to meet cases where the trial court has failed to make an order under sub-section (1) and it appears to the Court of appeal or revision that such an order ought to be made in the interests of justice. There is a conflict of decisions as to whether the period of one month from the date of the conviction which is mentioned in sub-section (1) also applies to the Court of appeal or revision. This conflict should be set at rest by a slight rewording of sub-section (3) indicating that the Court of appeal, confirmation, reference or revision may make an order while disposing of the appeal, reference or revision, as the case may be.”
It will thus appear clear that with a view to resolve the conflict of views between various High Courts that obtained under the old Code on the question whether the limitation of 30 days was applicable to the Court of appeal, reference or revision the phraseology was altered while enacting the new provision. The Calcutta High Court (Abdul Mannan v. Taiyab Ali AIR 1947 Cal 390) and the Kerala High Court (Krishnan Moothan v. V.K.A Krishnankutty Moothan AIR 1960 Ker 348, 1960 Cri LJ 1464, 1960 Mad LJ (Cri) 380, 1960 Ker LT 556) had taken the view that the Court of appeal, confirmation, reference or revision acting under Section 522(3) must pass the order of restoration of possession when upholding the conviction or at any time within one month from the date of the order in appeal, reference or revision upholding the order of conviction. This was contrary to the view taken by the Allahabad High Court in Nihal Singh v. Emperor AIR 1939 All 662, 1939 ALJ 595 where it was held that there was no limitation of one month from the date of conviction for passing the order under sub-section (3) of Section 522 as there was for an order under sub-section (1) and, therefore, where an order for restoration of possession of the immovable property was passed by the Magistrate more than one month after the conviction under Section 447 of the IPC, the High Court in revision could set aside that order and itself pass an order for the restoration of possession., In a later case Basanta Kumar Maity v. Kenaram Maity AIR 1953 Cal 393, 1953 Cri LJ 891, the Calcutta High Court took the view that the Sessions Judge as a Court of Reference has power to pass an order under Section 522 even after one month of conviction and there was nothing to prevent his validating the order of the Magistrate (passed beyond one month of the conviction) which was a just order and the Sessions Judge not having done so the High Court, as a Court of revision, had power under Section 522 to make such an order. In Fida Hussain v. Sarfaraz Hussain AIR 1933 Pat 617, the Patna High Court took the view that there was nothing in Section 522(3) to limit the jurisdiction of an appellate court to the passing of an order within one month either of the original conviction or the appellate order and that it was left to the discretion of the appellate or revisional court, not to exercise its power under this section in cases where there has been undue or excessive delay in moving the Court for its use: in other words the appellate or revisional Court will use its discretion in exercising power within reasonable time. In Savlaram Sadoba Navle v. Dnyaneshwar Vishnu Chinke AIR 1942 Bom 148 the Bombay High Court took the view that although there be not before the Court any appeal or revision against the conviction of the accused, and the Magistrate had rightly dismissed the application for an order for possession under Section 522(1) because it was made more than a month after the conviction, still the High Court can under sub-section (3) of Section 522 make an order for possession in a proper case in revision against the order dismissing the application for possession and in taking this view the Bombay High Court followed the view of the Patna High Court in Fida Hussain v. Sarfaraz Hussain and Rameshwar Singh v. King Emperor AIR 1925 Pat 689 and of the Allahabad High Court in Nihal Singh v. King-Emperor. It was with a view to set at rest the aforesaid conflict of views that the Law Commission recommended the change in the phraseology and the Parliament accepting the recommendation enacted sub-section (2) of Section 456 thus:
“Where the Court trying the offence has not made an order under sub-section (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.”
The language of sub-section (2) clearly 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 complainant or has refused to pass such order either because the offence was not attended by criminal force or show of force or 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 restoration has been preferred, in such a case, sub-section (2) provides that the appellate court or the Revisional Court while disposing of such appeal or revision may make an order restoring possession of the immovable property to the complainant. 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 conviction” but the words 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 cannot be regarded as importing a limitation on the power to the effect that such order must be incorporated in the body of the judgment disposing of the appeal, reference or revision. In other words, the appellate or revisional Court acting under Section 456(2) will have jurisdiction or power to pass the order for restoration of possession at any time but it has to be exercised with discretion within reasonable time of the disposal of the appeal, reference or revision
5. In our opinion the view taken by the High Court is clearly erroneous. We accordingly allow the appeal, set aside the impugned order passed by the High Court on September 25, 1975 and restore that passed by the Additional Sessions Judge on February 1, 1975.
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