Abani Kumar Kirty, J. - (1.) This is an application u/S. 561A of the CrPC in which the following prayer has been made: - - It is therefore prayed that order passed by Hon'ble Kirty, J. be modified to this extent that the order regarding restoration u/S. 522 CrPC be deleted. The material facts are these. Cr. A. No. 870 of 1967 was filed by the State of UP against the order of acquittal passed by the JO, Kanpur in Cr. Case No. 210 of 1966. The respondent in the appeal, Kailash Chandra Jain was tried by the said learned Magistrate u/S. 448 of the IPC and was acquitted. The aforesaid appeal was allowed by me on 1 -9 -70. The order of acquittal was set aside and the respondent was convicted u/S. 448 of the IPC and sentenced to pay a fine of Rs. 200 and to undergo one month's rigorous imprisonment in default of payment of fine. I had also passed the following order, which was incorporated in the judgment itself: U/S. 522 of the CrPC I direct that house No. 24/47 Birhana Road, Kanpur be restored to the possession of the complainant. The complainant was Pyarelal who had purchased the said house at a court sale for Rs. 32,500/ -. The sale in his favour was confirmed and in due course a sale certificate was also issued. On the application of Pyarelal delivery of possession of the house was effected under the orders of the Civil court on 8 -10 -1965 by the Court Amin with the aid of Police force. After possession had been delivered to Pyarelal he put his lock on the door of the house and went back to his own house for the purpose of bringing his furniture etc. for keeping the same in the house of which possession was delivered to him. When he returned he found that his lock had been broken open and possession over the house was taken by Kailash Chandra Jain. Thereafter he lodged a report and ultimately Kaliash Chandra Jain was prosecuted by the State.
(2.) At the time when I decided the appeal and passed the aforesaid order u/S. 522 CrPC, it was not canvassed before me that having regard to the express language of S. 522 CrPC an order for delivery of possession of the house in (favour of) Pyarelal could not be legally passed. The present application was filed on 4 -9 -70 after I had signed the judgment dated 1 -9 -70. The first question for decision, therefore, is whether it is legally open to me u/S. 561A CrPC to modify the order already passed by me in regard to delivery of possession of the house in question to Pyarelal.
(3.) On behalf of the applicant it was urged that this court has ample powers u/S. 561A CrPC to entertain the application and also to allow the same if satisfied that it is a fit case in which the prayer should be granted. In support of this contention reliance was placed on two Full Bench decisions, one of this court and the other of the Bombay High Court. Reliance was also placed on the decision of learned Single Judge of this Court. The said cases are: Raj Narain v/s. The State ( : 1959 AWR 43); The State of Bombay v/s. Nikanth Shripad Bhave ( : AIR 1954 Bom 65); and Mohammad Wasi v/s. State ( : 1951 AWR 80).;