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Synopsis

The Supreme Court has said that the high court, while hearing an application under Section 439, Criminal Procedure Code is not supposed to pass a decree for restoration of possession, as it set aside such a condition imposed by the Madras High Court in a case.

A bench of Justices Dipankar Datta and Manmohan said the legal position has been made clear in several decisions of the court, viz Ramesh Kumar Vs State (NCT of Delhi) (2023), St George Dsouza Vs State (NCT of Delhi) (2023) and Dilip Singh Vs State of M P & Anr (2021) as well as the decisions referred to therein.

The appellants, Najma and others were the petitioners before the High Court of Judicature at Madras. 

The high court, by its judgment and order of July 25, 2019, granted the appellants’ prayer for bail under Section 439, Code of Criminal Procedure, 1973 but with a condition. The appellants were required by such condition to handover possession of a ground floor and half of a portion namely 400 sq ft constructed area and the entire second floor to the de facto complainant within a period of two weeks. 

They filed the instant appeal, directed against the said order, but restricted to such a condition only.      

Having noted the impugned condition in the order, the bench said, "Undoubtedly, such a condition could not have been imposed by the High Court while granting bail. The High Court, while hearing an application under Section 439, CrPC is not supposed to pass a decree for restoration of possession".

The court thus set aside the offending condition for grant of bail. 

It made the interim protection, granted earlier absolute while consequently, allowing the appeal. 

This order shall, however, not preclude the private parties to approach the mediation centre attached to the high court, the court clarified. 

"We record that both sides are agreeable to explore the possibility of a mediated settlement. In such a view of the matter, the private parties may appear before the Mediator, Mediation Centre of the High Court on April 30, 2025. Should no settlement be arrived at before the Mediator, the de facto complainant shall be at liberty to pursue the channel of civil litigation seeking, inter alia, recovery of possession," the bench ordered.

Case Title: Najma & Ors Vs The Inspector of Police & Anr