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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

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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.  

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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 sub­ section (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.  

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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

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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

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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