IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1263 OF 2000. WRIT PETITION NO.1263 OF 2000. WRIT PETITION NO.1263 OF 2000. Karnail Singh Accharasingh. .. Petitioner. versus Shashikant Kulkarni & Anr. ..Respondents. .... Mr. Nitin Pradhan, i/b. Niranjan Mundargi, for the Petitioner. Mr. Y.S. Shinde, APP, for Respondent No.3. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 11TH JULY,2008. : 11TH JULY,2008. : 11TH JULY,2008. ORAL JUDGMENT : 1. The submissions of the learned counsel appearing for the parties were heard on 7th July 2008. However, time was granted to the learned counsel appearing for the petitioner to take instructions and therefore, judgment was not immediately dictated. 2. By this petition under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ’the said Code’), the petitioner is seeking a direction against the first and the second respondents to vacate the premises described in prayer clause (b). There is also a prayer for grant of compensation. 3. An offence under sections 341, 448 read with section 114 of the Indian Penal Code was registered on 27th December 1989 against Subhas Chandra, Mohan Singh and the petitioner. The case of the prosecution was that one Laxmibai Kolpe was residing alongwith her eldest son as a tenant in room no.15 in Alex chawl, chawl no.180 situated at Sonapur Lane, Kurla. According to the case of prosecution, the said Laxmibai was paying rent to the landlord by the name Alex David Gonsalves. The allegation is that on 27th December 1989, she surrendered her tenancy rights and possession to the accused persons and the accused persons started residing in the said room. The petitioner is the third accused. The F.I.R. was lodged by one Dnyaneshwar, a son of Laxmibai. The allegation in the F.I.R. is that the said Laxmibai without informing the first informant handed over the possession to the landlord. On the basis of FIR, the accused persons were arrested and later on were released on bail. By the judgment and order dated 29th June 2000, the accused persons were acquitted. 4. The learned counsel appearing for the petitioner submitted that even according to the case of the first informant, the petitioner was put in possession after surrender of tenancy by Laxmibai in favour of the landlord. He pointed out that there is a finding recorded by the learned Judge that after the registration of the FIR, the complainant took over possession of the said room from the petitioner. It is submitted that in view of the said clear finding, while passing the order of acquittal, the possession of the petitioner ought to have been restored. He contended that with the help of the Police Officers, the first informant has unlawfully dispossessed the petitioner. The learned counsel appearing for the petitioner placed reliance on section 456 of the said Code and submitted that in view of findings recorded in the judgment, the possession of the petitioner ought to have been restored. I have carefully considered the submissions. Section 456 of the said Code reads thus :- . "456. Power Power Power to restore possession of to restore possession of to restore possession of immovable immovable immovable property.- property.- 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 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 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." 5. The power sub-section (1) of section 456 can be exercised when a person is convicted of an offence attended by criminal force or show of force or intimidation. Thus, for exercising the power of restoration of possession, sub-section (1) of section 456 contemplates an order of conviction and the power under the said section can be exercised only when the trial results in conviction. 6. In the present case, the prosecution has ended in the acquittal and the petitioner is one of the accused. 7. The case is of the petitioner is that after filing FIR, he has been dispossessed by the first informant. Assuming that the said case was true, there is no power under the said Code under which the learned Trial Judge could have restored possession in favour of the petitioner. 8. It is for the petitioner to adopt appropriate remedy in accordance with the law for recovery of possession. 9. Subject to what is observed above, there is no merit in the petition and the same is accordingly rejected. Rule is discharged. 10. This order will not preclude the petitioner from initiating appropriate proceedings for recovery of possession. [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]