Kartar Singh vs State & Ors.
2011 Latest Caselaw 5467 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

+          Crl. MC No.3152/2010 & Crl. M.A. 15900/2010

                                        Reserved on: 02.11.2011
                                     Pronounced on: 15.11.2011

KARTAR SINGH                                       ..... Petitioner
                          Through     Mr.  Anil       Kumar       Gujral,
                                      Advocate

                                Versus

STATE & ORS.                                       ..... Respondents
                          Through     Ms Fizani Husain, Addl. PP

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

1.      Whether Reporters of local papers may be
        allowed to see the judgment?                           Yes
2.      To be referred to the Reporter or not ?                Yes
3.      Whether the judgment should be reported
        in the Digest ?                                        Yes

M.L. MEHTA, J.

1. Vide this petition challenge is made to the order dated 27th

August, 2010 of learned ACMM whereby an application under

section 5 of Limitation Act filed for condoning the delay in filing

the application under section 456 Cr. P.C. of the complainant was

allowed.

2. Brief facts necessary for the disposal of the present petition

are that the petitioner herein was convicted under section 448/34

IPC by learned MM, Delhi vide judgment dated 1 st March 2008 in

FIR No. 164/1989 of P.s. Vasant Kunj. Thereafter he was released

on probation of good conduct for a period of six months vide

order dated 14th March 2008. While convicting the petitioner as

above, the learned MM did not pass any order under section

456(1) of Cr. P.C. for restoration of the possession of the property

measuring 2 bigha 14 biswa, forming part of Khasra No. 1146

min, village Rangpur, Tehsil Mehrauli, New Delhi (hereinafter

referred to as 'the said property') in favour of the complainants.

Even no application in this regard was filed by the complainants

for seeking restoration of the property allegedly trespassed by the

petitioner. The complainants who are respondent No. 2 and 3

herein, filed an appeal against the impugned judgment of

conviction and order on sentence of release of the petitioner on

probation before the learned ASJ on 12.05.2009 vide Crl. Appeal

No. 35/2009. They also prayed for restoration of the possession

of the said property to them as per section 456(2) of Cr. P.C. The

said appeal remained pending for adjudication before the learned

ASJ and it was on 05.06.2010 when the same was dismissed as

withdrawn. The order passed by learned ASJ reads as under:

"CA No. 35/09 05/06/2010 Present: Sh. M.Z. Khan, Ld. Addl. PP for State.

Sh. Sandeep Sehrawat, counsel for petitioner.

Sh. Vishal Tokas, counsel for R1 Ld. counsel for petitioner seeks permission to withdraw the appeal with liberty to move appropriate application for restoration of possession before Ld. Trial Court.

In view of the facts and circumstances, the appeal is dismissed as withdrawn. TCR be sent back. Since the accused is a Sr. Citizen, Ld. Trial Court is requested to dispose of the petition as expeditiously as possible.

File be consigned to R.R."

3. Now after withdrawing this appeal, the respondent No. 2

and 3 filed an application under section 456(1) of Cr P.C. before

the MM for restoration of the possession of the said property.

They also filed an application under section 5 of the Limitation Act

for condoning the delay in filing the said application under section

456 Cr. P.C. This application under section 5 of the Limitation Act

came to be allowed vide the impugned order dated 27th August

2010 which is under challenge in the present petition. The

operative part of the impugned order reads like this:

"Accordingly, in view of these facts and circumstances, this court is of the considered view that sufficient cause has

been shown by the complainant/applicant, for delay in filing of the present application and thus, in the interest of justice the delay may be condoned. Therefore, in the interest of justice, I condone the delay in filing the present appeal. Case is now to come on 17.09.2010, for reply, if any, to the application under section 456 Cr. P.C. and arguments on the said application."

4. The impugned order is assailed mainly on the ground that

the order for restoration of the possession under Section 456 (1)

Cr. P.C. was discretionary and since it was not passed by the

learned MM while convicting the petitioner under section 448 of

IPC, or within one month thereof, the trial court had no power to

pass order of restoration after the expiry of long period of more

than three years. The learned counsel submitted that there was

no provision in Cr. P.C. for condonation of delay in filing

application under section 456(1) cr.P.C. and that the provisions of

Limitation Act were not applicable in the criminal proceedings.

The learned counsel as relied upon the judgments in the cases of

- (1) Krishnan Moothan Vs. V.K. A. Krishnakutty, (1960)

Crl. L.J. 1464, Kerala High Court; (2) Joban Dass & Others

Vs. Shibu, (1964) 2 Crl. L.J. 295, HP; (3) Subhan Vs.

State, (1974) Crl. L.J. 731, Allahabad HC; and (4) Abdul

Salam and Another Vs. Insp. of Police, R.I. Mambalam,

P.S., (1994), Crl. L.J. 578, Madras HC to contend that the

Court of MM became functus officio after the pronouncement of

the judgment on 1st March 2008 and order on sentence on 14th

March 2008 and that since no order was passed for restoration of

possession within one month, the same could not be passed in

view of the bar created by the proviso of section 456(1) Cr.P.C.

5. The learned counsel appearing for the respondents

contended otherwise and submitted that the respondents had

preferred an appeal against the impugned judgment and order

dated 01.03.2008 and 14.03.2008 respectively of learned MM

vide Crl. Appeal No. 35 of 20098 before the appellate court of ASJ

and that since the appeal was not decided by the learned ASJ on

merits and permission was granted to file an application for

restoration of possession under section 456 Cr.P.C., the proviso to

section 456(1) Cr.P.C. would not be attracted. In other words, the

submission of the learned counsel was that the respondents

availed the remedy of appeal as per the advice and since their

appeal was not decided by the appellate court and no order was

passed by the appellate court for restoration of possession, but

the permission was granted to make application for restoration of

possession, there was no bar for the MM to pass an order under

section 456(1) Cr. P.C. The learned counsel for the respondent

replied upon the decision of H.P. Gupta Vs., Manohar Lal and

Ors., AIR 1979 SC 443.

5. Before adverting to the rival submissions and the

judgments cited by the petitioners and respondent, section 456

Cr. P.C., which is the subject matter of interpretation, may be

noted. It reads thus:

"(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 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.

(3) Where an order has been made under sub-section (1), the provisions of section 454 shall apply in relation thereto as they apply in relation to an order under section

(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"

6. A plain reading of the section reveals no ambiguity. Under

sub section (1), the court convicting any person of an offence

attended by criminal force or show of force or by criminal

intimidation, may if it deems fit, order the restoration of the

possession of the immovable property to the person

dispossessed. However, there was a rider provided in the proviso

that such order could not be made by the convicting court more

than one month after the date of conviction. Admittedly, in the

present case, no order of restoration of possession was passed by

the learned MM while convicting the petitioner on 01.03.2008.

Admittedly no application was also filed by the

complainant/respondent during the pendency of the proceedings

or within one month of the conviction order. That being so,

apparently, the Magistrate was not empowered to pass any order

of his own or on the application after one month of recording of

conviction. In this case the application for restoration was filed

before the appellate court three months after the confirmation of

conviction by it. In the case of Krishnan Moothan (supra) the

Single Judge of the High Court held that it was not only that order

of restoration under sub section (1) was subject to the limitation

of one month, but the court of appeal, confirmation, reference or

revision was also not free to pass such an order of reference at

any time.

7. In the case of Joban Dass & Others (supra) also, the

Himachal Pradesh High Court held that the period of limitation

was one month from the date of conviction. It held as under:-

"The sub section does not authorize a Magistrate to pass such an order, beyond from the date of conviction. In the instant case, not only the order of restoration of possession was passed beyond one month from the date of conviction, but the application, itself, for passing the order was filed after that period. The learned Magistrate had no authority to pass the order, for restoration of possession. His order is illegal and liable to be quashed."

8. Similar was the decision in the case of Subhan (supra), by

the Single Bench of Allahabad High Court. In the case of Abdul

Salam and Anr. (Supra), also, the Madras High Court had the

similar view and held as under:

"The proviso to Section 456, Cr.P.C. appears to be mandatory in nature and if at all any order for the restoration for possession by the learned Magistrate is required to be passed, that can be done only within one month of the passing of the judgment of conviction. If this is so, the impugned order by the learned Magistrate for the restoration of possession of the rental premises for any reason whatsoever should have been on or before 9-12-1987 and beyond that, he is not competent to pass any order. It is under these circumstances, some force is available in the contention of the learned counsel for the revision petitioner.

22. In K. Lakshhamma v. State of A.P. (1980) MLJ (Crl) 294, a Bench of the Andhra Pradesh High Court while dealing with the scope of Section 456, Cr.P.C. has observed as follows :

"The proviso to Section 456(1), Criminal Procedure Code, leaves no doubt whatsoever that such order of restoration cannot be made by the Court more than

one month after the date of the conviction. There is no dispute that by 7th July, 1978 the period of one month had already elapsed, and the question is whether because the petition for restoration was filed within one month from the date of conviction, the Magistrate had the jurisdiction to pass an order for restoration on any day beyond the period of one month from the date of conviction. A plain reading of the section leaves no alternative but to hold that the Magistrate has become functus officio and had no longer any jurisdiction to pass such order of restoration after the expiry of one month from the date of conviction."

9. As stated above and in view of the decisions of the

judgments as noted above, there cannot be any dispute that

power of the Magistrate for restoration of possession of

immovable property to the person dispossessed was limited by

the proviso of sub section (1) of Section 456, CrPC. However, the

question for consideration in the present case is on different facts

and circumstances. In the present case, the respondent preferred

an appeal against the order of conviction before the Appellate

Court of learned ASJ. The matter remained pending before the

Appellate Court for considerable time and it was only on 5.6.2010

that the order permitting withdrawal of the appeal with liberty

given to the respondent/complainant to move appropriate

application for restoration of the possession before the trial court

was passed by the court of ASJ. The said order has been

reproduced above. It would be seen that this came to be passed

in the presence of Sh. Vishal Tokas, learned counsel for the

petitioner herein. The Appellate court of ASJ did not pass the

order on merit, but allowed withdrawal of the appeal and granted

liberty to the respondent to file appropriate application for

restoration before the court of ACMM. It was thereafter that the

respondents filed an application under Section 456 CrPC before

the learned ACMM along with an application Sec. 5 of Limitation

Act for condonation of delay in filing the said application. Vide the

impugned order, the learned ACMM has only condoned the delay

in filing the application under Sec. 456 CrPC and had fixed the

matter for disposal of the said application on merits. Though such

eventuality as has happened in this case, was not specifically

dealt with by the provisions of Sec. 456 CrPC, but the order of the

appellate court has lifted the bar of limitation provided in the

proviso of sub-section (1). Under sub Sec. (2) there was no

limitation prescribed on the powers of court of appeal,

confirmation or revision, in passing an order of restoration of

possession. In the instant case, the appellate court judge instead

of himself passing an order of restoration of possession of the

premises to the respondents, has permitted them to make

appropriate application in this regard before the trial court which

had passed the order of conviction. There does not appear to be

any impropriety or illegality for the appellate court in passing

such an order. This order of the appellate court permitting filing

of the application for restoration of possession before the trial

court was passed in the presence of counsel for the petitioner and

no objection was raised to the passing of such an order. If that

was so, the court of MM being subordinate, was bound to

entertain the application for restoration of possession. That being

the factual situation, the petitioner can be presumed to have

waived for period of limitation for passing an order of restoration.

10. In the case of H.P. Gupta (Supra), Supreme Court while

dealing with the question regarding the power of appellate court

in restoring the possession of immovable property under Section

456(2) CrPC, held as under:

"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."

11. In view of my above discussion, I am of the considered view

that in the given facts and circumstances of the case, learned

ACMM rightly condoned the delay in entertaining the application

under section 456(1) of Cr. P.C. of the respondents. Here, it may

also be noted that it is only that the delay in filing the application

that has been condoned and no order of restoration of possession

has been passed by the learned ACMM. Needless to state that

before passing any order of restoration of possession of

immovable property to the respondents, the trial court would

have to satisfy about the availability of the ingredients of sub

section (1) of section 456 Cr.P.C. The appellant would have an

opportunity to contest the said application.

12. The petition, in view of the above, is dismissed.

M.L. MEHTA (JUDGE) November 15, 2011 awanish