tag:blogger.com,1999:blog-43110251284486175532024-03-14T01:26:12.359+05:30 A.P.H.C.CASE LAW - ADVOCATEMMMOHANLAWS AND FLAWSadvocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.comBlogger1602125tag:blogger.com,1999:blog-4311025128448617553.post-85565884429655569832021-08-07T18:54:00.004+05:302021-08-07T18:54:59.251+05:30running a Tea stall for the last ten years by raising a tin shed (bunk) adjacent to the Bus Stop at Sangam Road and eking out his livelihood. He is a land less poor person. While so the 2nd respondent issued the impugned notice dated 31.07.2021 to the petitioner stating that the Gram Panchayat land was occupied and the shop was constructed, hence vacate the same otherwise action will be initiated under Section 98 of A.P. Panchayat Raj Act, 1984.=petitioner also gave a representation to the 2nd respondent on 03.08.2021 informing that the tea shop is situated leaving the road margin and margin from the Bus stop also, he is paying taxes to the 2nd respondent and it is not obstructing any passage or required for any road widening purpose. Similar representation is given to the 3rd and 4th respondents on 04.08.2021. But in vain.-respondent is directed to consider and dispose of the representation of the petitioner dated 03.08.2021 within four (4) weeks from the date of receipt of a copy of this Order. Till such disposal of the said representation of the petitioner by the 2 nd respondent there shall not be any dispossession of the petitioner from running the said Tea stall. Any dispossession of the petitioner and removal of the said tea stall shall be in accordance with law.<p><br /></p><p>AP HIGH COURT ; AMARAVATHI;</p><p>THE HON’BLE SRI JUSTICE B. KRISHNA MOHAN</p><p>WRIT PETITION NO.16503 of 2021</p><p>ORDER:</p><p>The learned Assistant Government Pleader takes notice for</p><p>Respondents No.1 and 3.</p><p>2. Heard the learned counsel for the petitioner and the learned</p><p>Assistant Government Pleader for R1 and R3.</p><p>3. It is the case of the petitioner that the petitioner is running a</p><p>Tea stall for the last ten years by raising a tin shed (bunk) adjacent to</p><p>the Bus Stop at Sangam Road and eking out his livelihood. He is a</p><p>land less poor person. While so the 2nd respondent issued the</p><p>impugned notice dated 31.07.2021 to the petitioner stating that the</p><p>Gram Panchayat land was occupied and the shop was constructed,</p><p>hence vacate the same otherwise action will be initiated under</p><p>Section 98 of A.P. Panchayat Raj Act, 1984. Aggrieved by the same</p><p>this Writ Petition is filed.</p><p>4. The learned counsel for the petitioner submits that the</p><p>petitioner also gave a representation to the 2nd respondent on</p><p>03.08.2021 informing that the tea shop is situated leaving the road</p><p>margin and margin from the Bus stop also, he is paying taxes to the</p><p>2nd respondent and it is not obstructing any passage or required for</p><p>any road widening purpose. Similar representation is given to the</p><p>3rd and 4th respondents on 04.08.2021. But in vain. There is a threat </p><p>2</p><p>of dispossession and no opportunity is given to the petitioner by the</p><p>2nd respondent.</p><p>5. In view of the above said facts and circumstances, the</p><p>2nd respondent is directed to consider and dispose of the</p><p>representation of the petitioner dated 03.08.2021 within four (4)</p><p>weeks from the date of receipt of a copy of this Order. Till such</p><p>disposal of the said representation of the petitioner by the</p><p>2nd respondent there shall not be any dispossession of the petitioner</p><p>from running the said Tea stall. Any dispossession of the petitioner</p><p>and removal of the said tea stall shall be in accordance with law.</p><p>6. Accordingly, the Writ Petition is disposed of. There shall be no</p><p>order as to costs of the Writ Petition.</p><p>As a sequel thereto, miscellaneous petitions, if any, pending in</p><p>the Writ Petition shall stand closed.</p><p>______________________</p><p>JUSTICE B. KRISHNA MOHAN</p><p>06-08-2021</p><p>Note : Furnish C.C. by today</p><p> (By order)</p><p> Yvk</p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-17806866923486271272021-08-06T11:14:00.002+05:302021-08-06T11:14:55.524+05:30writ of mandamus declaring the action of respondents in awarding less marks in practicals of final year MBBS Part-II examination held during March 2021 and thereby failing the petitioners in final year MBBS Part-II as illegal, arbitrary and contrary to the guidelines for MBBS courses and syllabus prescribed by 2nd respondent University and also violative of Articles 14, 16 & 21 of Constitution of India = In similar circumstances, the Hon’ble Apex Court, vide order dated 18.06.2021 in W.P.(Civil) No.631/2021, while declining the prayer of the petitioners therein, who were final Post Graduate medical students, to waive their examinations and to promote them as Senior Residents and to the Post Doctoral level, held thus: “3. The petitioners have also questioned advisories regarding post graduate courses/examinations issued by the National Medical Commission being Annexures P3 and P4 to the writ petition and in effect sought orders of this Court directing the Respondent authorities to make relaxations in norms and criteria fixed as per policy decision in relation to medical education at the post graduate stage. It is impermissible for Courts exercising powers under Article 32 and/or Article 226 of the Constitution of India to interfere with or regulate policy matters or to sit in appeal therefrom.” So, at the outset this writ petition itself is not maintainable. Accordingly, this Writ Petition is dismissed.<p>AP HIGH COURT</p><p> HON’BLE SRI JUSTICE U.DURGA PRASAD RAO</p><p>Writ Petition No.10878 of 2021</p><p>ORDER:</p><p>The petitioners pray for writ of mandamus declaring the action of</p><p>respondents in awarding less marks in practicals of final year MBBS Part-II</p><p>examination held during March 2021 and thereby failing the petitioners in</p><p>final year MBBS Part-II as illegal, arbitrary and contrary to the guidelines</p><p>for MBBS courses and syllabus prescribed by 2nd respondent University and</p><p>also violative of Articles 14, 16 & 21 of Constitution of India and</p><p>consequently direct the respondents 2 & 3 to award minimum qualifying</p><p>marks in MBBS final Part-II practical examination and pass them.</p><p>2. The petitioners’ case succinctly is thus:</p><p> The petitioners are prosecuting MBBS course in 4th respondent</p><p>college. They joined 1st year MBBS during the Academic Year 2015-16 and</p><p>completed all the semesters including final year MBBS Part-I.</p><p> While so, due to the COVID-19 pandemic, respondent No.3</p><p>conducted online classes to the students. However, there was no regular</p><p>correspondence with the concerned faculties for better understanding and</p><p>guidance. Respondent No.2 university issued notification on 30.01.2020 to</p><p>conduct final year exams of MBBS. Final year MBBS Part-II theory exams</p><p>were scheduled from 02.03.2021 to 12.03.2021 and practicals were</p><p>scheduled to be held on 22.03.2021. As per curriculum, final year MBBS</p><p>Part-II consists of four subjects viz.,</p><p>(1)General Medicine (Medicine)</p><p>(2)Paediatrics</p><p>(3)General Surgery including Paediatric Surgery, Orthopaedics and</p><p>Traumatology (Surgery) and</p><p>(4)Obstetrics and Gynaecology </p><p>2</p><p>As per guidelines, a student should score 50% in theory and practicals</p><p>and 35% as pass marks in internals and should score an aggregate of 50%</p><p>for qualifying the semesters. Teaching methodology is concerned, there</p><p>should be a minimum of 370 classes, out of which 1/3rd should be for theory</p><p>and remaining 2/3rd should be for lectures/demonstrations/integrated</p><p>teaching. However, due to COVID-19 pandemic the prescribed classes were</p><p>not conducted for theory as well as practicals, but the services of students of</p><p>final year were utilized for the treatment of COVID positive patients, due to</p><p>which some of the petitioners were affected with COVID.</p><p>In the above backdrop, the petitioners appeared for the exams</p><p>conducted by 2nd respondent University in the month of March 2021. As per</p><p>guidelines, the marks in practical exams were awarded by the professors of</p><p>the University or 3rd party colleges. During the practical examination the</p><p>petitioners performed to their level best though practical training for the</p><p>prescribed period was not conducted. The petitioners also appeared for the</p><p>theory exams. In the second week of April 2021 the 2nd respondent declared</p><p>the results. To their surprise, the petitioners failed on the ground that they</p><p>have not scored prescribed marks in practical exams within a margin of 5 to</p><p>10 marks. However, they were all passed in theory, oral and internal</p><p>assessments. It is not out of place to mention that for conducting regular</p><p>classes and practical training certain conditions were imposed during the</p><p>lockdown period, however, the 2nd respondent did not relax the conditions in</p><p>awarding marks in practical exams. The students who are having</p><p>background of medical hospital facility were passed. Due to awarding less</p><p>marks in practicals, the petitioners have to again attend all the papers once </p><p>3</p><p>again though they secured good marks in theory papers, which is much</p><p>tougher than other. As such the petitioners made representations to the</p><p>respondents 2 & 3 for reassessment of practical marks which were awarded</p><p>contrary to syllabus guidelines. But the respondents disinclined to reassess</p><p>the marks on the ground that no guidelines were prescribed for reassessment</p><p>of marks. Due to the unjustified acts of the respondents, the petitioners</p><p>would lose one academic year without their fault. Though the Government</p><p>extended all benefits to all the students in view of the COVID-19 pandemic,</p><p>respondent No.2 University did not take into consideration the same and</p><p>deprived the petitioners such benefits which amounts to violation of their</p><p>fundamental rights.</p><p>Hence, the writ petition.</p><p>3. The 3rd respondent filed counter opposing the writ petition and inter</p><p>alia contending thus:</p><p>MBBS course is governed by the regulations prescribed by the Apex</p><p>body i.e., National Medical Commission (NMC)/5th respondent. Being the</p><p>student of a professional course, each one shall acquire sufficient skills both</p><p>in theory and practical examinations to undertake responsibilities of a</p><p>physician of first contact who is capable of looking after the preventive,</p><p>promotive, curative and rehabilitative aspects of medical care.</p><p>The final MBBS part-II theory and practical examinations were</p><p>conducted as per the guidelines dated 29.11.2020 of NMC and letter dated</p><p>25.11.2020. All the Principals are advised that they shall ensure strict</p><p>compliance of guidelines issued by the Ministry of Health & Family Welfare</p><p>and respective State/U.T. Governments about COVID-19 preventive </p><p>4</p><p>measures including social distancing, use of masks and sanitization</p><p>measures in hostels, classrooms, laboratories, lecture theatres and common</p><p>spaces etc. by following safety precautions.</p><p>Following the above guidelines the NMC, the eligible teachers were</p><p>appointed under Rule 13-Apppointment of examiners. The guidelines are:</p><p>1. No person shall be appointed as an examiner in any of the</p><p>subjects of the professional examination including final</p><p>professional examinations for awarding MBBS degree,</p><p>unless he/she has taken doctorate degree of a recognized</p><p>university or an equivalent qualification in the particular</p><p>subject as per the recommendation of the Council on</p><p>teachers’ eligibility qualifications and has had atleast five</p><p>years of total teaching experience in the subject concerned in</p><p>a college affiliated to a recognized university at a faculty</p><p>position.</p><p>2. There shall be atleast four examiners for 100 students, out of</p><p>whom not less than 50% must be external examiners. Out of</p><p>four examiners, the senior most internal examiner will act as</p><p>the Chairman and coordinator of the whole examination</p><p>programme, so that uniformity in the matter of assessment</p><p>of candidates is maintained. Where candidates appearing</p><p>are more than 100, one additional examiner for every</p><p>additional 50 or part thereof candidates appearing, be</p><p>appointed.</p><p>3. Non medical scientists engaged in the teaching of medical</p><p>students as whole time teachers, may be appointed as</p><p>examiners in their concerned subjects provided they possess</p><p>requisite doctorate qualifications and five year teaching</p><p>experience after obtaining their postgraduate qualifications.</p><p>Provided further that the 50% of the examiners (Internal &</p><p>External) are from the medical qualification stream. </p><p>5</p><p>4. External examiners shall not be from the same university</p><p>and preferably be from outside the state. (5) The internal</p><p>examiner in a subject shall not accept external examinership</p><p>for a college from which external examiner is appointed in</p><p>his subject.</p><p>5. A university having more than one college shall have</p><p>separate sets of examiners for each college, with internal</p><p>examiners from the concerned college.</p><p>6. External examiners shall rotate at an interval of 2 years.</p><p>7. There shall be a Chairman of the Board of paper-setters who</p><p>shall be an internal examiner and shall moderate the</p><p>questions.</p><p>8. Except Head of the department of subject concerned in a</p><p>college/institution, all other with the rank of reader or</p><p>equivalent and above with requisite qualifications and</p><p>experience shall be appointed as internal examiners by</p><p>rotation in their subjects; provided that where there are no</p><p>posts of readers, then an Assistant Professor of 5 years</p><p>standing may be considered for appointment as examiner.</p><p>Apart from the above regulations prescribed by NMC, the respondent</p><p>university also observed the revised guidelines in appointing the suitable</p><p>examiners to conduct exams not only at Narayana Medical College, Nellore,</p><p>but also other colleges in the entire State as per the letters dated 25.11.2020</p><p>and 28.01.2021 of the Secretary, NMC. After taking into consideration the</p><p>above guidelines of the advisory committee, the respondent university has</p><p>appointed eligible examiners in the subject of Surgery with three internals</p><p>and three externals, wherein one examiner is from the department of</p><p>Orthopedics i.e, (2+1), two examiners of Surgery and one examiner in</p><p>Orthopedics including Professor & HOD of Narayana Medical College,</p><p>Nellore. </p><p>6</p><p> The students failed in the clinical examination need more clinical</p><p>coverage as it is the professional examination and they did not acquire</p><p>sufficient clinical skills to pass the examination which was assessed by six</p><p>eligible examiners/teachers.</p><p> The NMC issued proceedings/Advisory dated 28.01.2021 stating that</p><p>the provisions have been amended and instructed the universities including</p><p>the respondent university that they adopt the above guidelines for</p><p>conducting examinations of MBBS batches who were admitted prior to the</p><p>Academic Year 2019-20 also. The petitioners are covered by the above</p><p>amended clause and thereby they are not entitled to any relief and their</p><p>prayer is contrary to the amended proceedings letter dated 28.01.2021.</p><p> The clinical examination in the subject of Surgery at Narayana</p><p>Medical college, Nellore was held for a period of ten days i.e., from</p><p>23.03.2021 to 01.04.2021 by allowing a maximum of 25 students per day for</p><p>the examination. Therefore, erroneous/less awarding of marks by the</p><p>teachers is not at all feasible as there were sufficient number of teachers to</p><p>examine on each day. There are no merits in the writ petition and hence,</p><p>the same may be dismissed.</p><p>4. Heard arguments of the senior counsel Sri N.Subba Rao representing</p><p>Sri Soma Harinatha Reddy, counsel for petitioners, and learned Government</p><p>Pleader for Medical Health & Family Welfare representing the 1st</p><p>respondent, Sri G.Vijay Kumar, Standing Counsel for the respondents 2 & 3,</p><p>and Sri S.Vivek Chandra Sekhar, Standing Counsel for 5th respondent.</p><p>5. The point for consideration is whether there are merits in the writ</p><p>petition to allow? </p><p>7</p><p>6. Point: The fulcrum of the argument of learned senior counsel Sri</p><p>N.Subba Rao is that the petitioners are final year MBBS students and final</p><p>year MBBS Part-II theory examinations were scheduled from 02.03.2021 to</p><p>12.03.2021 and practicals were scheduled to be held on 22.03.2021.</p><p>However, since December 2019 world was caught under the grip of COVID19 pandemic and it spread to India in March 2020. Therefore, regular</p><p>classes were held only upto March 2020 and thereafter due to lockdown</p><p>imposed by the Central Government, theory and practicals could not be</p><p>conducted systematically. Though virtual teaching was commenced in the</p><p>colleges through online method, they were hardly competitive to impart</p><p>medical knowledge to the petitioners. Moreover, practical/clinical classes</p><p>were hardly conducted. Therefore, the petitioners were deprived of the</p><p>valuable theoretical lectures and practical training through physical mode</p><p>and thereby they could not fare well in the exams despite the fact that they</p><p>are intelligents by nature. Above all, the service of the petitioners, who are</p><p>final year students, were utilized for the treatment of COVID patients, due to</p><p>which some of the petitioners were also affected with COVID. Learned</p><p>counsel submitted, in this backdrop, the petitioners appeared for the exams</p><p>and they failed in practical exams with a narrow margin of 5 to 10 marks.</p><p>As such the petitioners made a representation to the respondents 2 & 3 for</p><p>reassessment of the practical marks, which were awarded contrary to the</p><p>syllabus guidelines, however, respondents declined to reassess the marks on</p><p>the ground that there were no guidelines for reassessment as prayed for.</p><p>Learned counsel argued that all other educational institutions have given</p><p>concession to their students in view of the COVID-19 pandemic keeping in </p><p>8</p><p>view the valuable academic career of the students. However, despite the</p><p>representation the 2nd respondent university did not consider the legitimate</p><p>prayer of the petitioners. Hence, their fundamental right is violated. He thus</p><p>prayed to allow the writ petition.</p><p>7. Severely opposing the writ petition, learned Standing Counsel for 2nd</p><p>respondent Sri G.Vijay Kumar argued that the MBBS course is governed by</p><p>the regulations prescribed by the Apex body i.e., National Medical</p><p>Commission and all the medical universities are bound by those regulations.</p><p>While so, during the COVID period, the NMC wrote a letter dated</p><p>12.11.2020 to the Ministry of Health & Family Welfare, Government of</p><p>India, recommending that medical colleges across the country must be</p><p>reopened on or before 01.12.2020 for the MBBS students who are already</p><p>pursuing the course and with the opening of medical colleges, in order to</p><p>facilitate UG training, all medical college affiliated hospitals would need to</p><p>have sufficient number of beds for non-COVID patients. The NMC further</p><p>recommended that the colleges shall abide with the COVID-19 reopening</p><p>guidelines issued by the Competent authorities in the Central/State/UT</p><p>Governments and the proposed schedule of medical training shall commence</p><p>on or before 01.12.2020. The NMC requested the Central Government to</p><p>issue necessary directions in that regard to all the State Governments for</p><p>reopening of the medical colleges. Consequently the Central Government in</p><p>its letter dated 25.11.2020 instructed the States/Union Territories to take</p><p>necessary steps to open the medical colleges on or before 01.12.2020.</p><p>Learned counsel thus argued that in spite of the prevalence of COVID-19</p><p>pandemic, the NMC took steps to reopen the medical colleges by 01.12.2020 </p><p>9</p><p>and to conduct classes. Even before that, online classes were conducted. So</p><p>the petitioners cannot harp that they are not provided with sufficient teaching</p><p>in theory and practicals. He argued that to his information, except the</p><p>present petitioners no other students in the country rushed to the Court with</p><p>a prayer as made by the petitioners. He thus prayed to dismiss the writ</p><p>petition.</p><p>8. Learned Standing Counsel for 5th respondent also argued in similar</p><p>lines and emphasized that the regulations framed by the NMC and</p><p>consequent guidelines issued by the 2nd respondent university do not permit</p><p>to consider the request of the petitioners to award marks liberally in</p><p>practicals in spite of the poor performance of the students like petitioners.</p><p>9. I gave my anxious consideration to the above respective arguments.</p><p>The petitioners attribute their failure in final year MBBS practicals</p><p>examinations to the awarding of less marks by the respondent authorities</p><p>despite the fact that no proper teaching in theory and practicals was</p><p>conducted owing to COVID-19 pandemic. However, the contention of the</p><p>respondents is that in spite of the prevalence of COVID-19 pandemic, online</p><p>theory and practical classes were conducted and further, steps were taken to</p><p>reopen the medical colleges from 01.12.2020 to impart regular teaching and</p><p>clinical training and therefore, the petitioners cannot harp that no training</p><p>was provided to them. It is also their contention that the Regulations do not</p><p>provide any leeway to award marks in practicals despite poor performance</p><p>by the students. </p><p>10</p><p>10. I find force in the contention of the respondents. It is true that due to</p><p>COVID-19 pandemic there was some disruption in conducting theory</p><p>classes and practicals due to total lockdown. However, the recommendations</p><p>made by the NMC to the Ministry of Healthy & Family Welfare,</p><p>Government of India, vide its letter dated 12.11.2020, a copy of which is</p><p>filed along with counter affidavit, would show that the NMC has strongly</p><p>recommended that medical colleges across the country should be reopened</p><p>on or before 01.12.2020 for MBBS students who are already pursuing their</p><p>course. It is further recommended that with the opening of the medical</p><p>colleges, in order to facilitate UG training, all hospitals affiliated to medical</p><p>colleges would need to have sufficient number of beds for non-COVID</p><p>patients. Those recommendations were communicated by the Central</p><p>Government to the State/UT Governments vide its letter dated 25.11.2020.</p><p>Thus, as rightly argued by the learned counsel for respondents, the NMC and</p><p>the Central and State Governments have taken steps for reopening of the</p><p>medical colleges by 01.12.2020 to impart teaching and training. Besides,</p><p>online teaching was already going on by that time. Therefore, the petitioners</p><p>cannot harp that they were deprived of valuable teaching and training and</p><p>that was the sole reason for their failure in the practicals. It is pertinent to</p><p>point out that no students throughout the country including the petitioners</p><p>challenged the holding of exams on the ground that through virtual teaching</p><p>methodology, they could not understand the subjects and thereby they were</p><p>not in a position to write the exams. On the other hand, all the students,</p><p>including the petitioners, appeared in the annual examinations, in which</p><p>some students got through and some others including the petitioners failed.</p><p>So, at the outset, the petitioners cannot now clamour that online teaching </p><p>11</p><p>system had had adverse impact on their grasping power and thereby they</p><p>failed in the examination. When holding of examinations is not challenged,</p><p>the petitioners cannot attribute virtual teaching method as the cause for their</p><p>failure and on that ground they cannot seek for awarding marks liberally to</p><p>get through the practical exams.</p><p> Added to the above, the regulations i.e., “Regulation on Graduate</p><p>Medical Education (Amendment) 2019” framed by the NMC do not contain</p><p>any provision to award marks liberally in some contingencies. On the other</p><p>hand, the regulations would project that the aim of the medical profession is</p><p>“help for all” and in that view, the sub-standard students cannot somehow be</p><p>elevated to higher classes which would degenerate the medical profession.</p><p> Above all, this Court while exercising the plenary jurisdiction under</p><p>Article 226, cannot direct the statutory authorities like 2nd respondent</p><p>university and 5th respondent-NMC to award marks to the petitioners when</p><p>seemingly there was no violation of any fundamental right or other statutory</p><p>rights. In similar circumstances, the Hon’ble Apex Court, vide order dated</p><p>18.06.2021 in W.P.(Civil) No.631/2021, while declining the prayer of the</p><p>petitioners therein, who were final Post Graduate medical students, to waive</p><p>their examinations and to promote them as Senior Residents and to the Post</p><p>Doctoral level, held thus:</p><p>“3. The petitioners have also questioned advisories regarding post</p><p>graduate courses/examinations issued by the National Medical</p><p>Commission being Annexures P3 and P4 to the writ petition and in effect</p><p>sought orders of this Court directing the Respondent authorities to make</p><p>relaxations in norms and criteria fixed as per policy decision in relation to</p><p>medical education at the post graduate stage. It is impermissible for Courts</p><p>exercising powers under Article 32 and/or Article 226 of the Constitution</p><p>of India to interfere with or regulate policy matters or to sit in appeal</p><p>therefrom.” </p><p>12</p><p>11. So, at the outset this writ petition itself is not maintainable.</p><p>Accordingly, this Writ Petition is dismissed. No costs.</p><p>As a sequel, interlocutory applications, if any pending, shall stand</p><p>closed.</p><p> _________________________</p><p> U. DURGA PRASAD RAO, J</p><p>05.08.2021</p><p>MVA</p><p> </p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-71569403225243822092021-08-06T10:55:00.001+05:302021-08-06T10:55:07.674+05:30 Learned counsel for petitioner submits that even if all the allegations are taken on its face value, the aforementioned offences are not attracted. Even as per the complaint, it is with the consent of complainant they had sexual intercourse, Section 376 IPC has no application. He submits that Sections 3(1)(w)(i) and 3(2)(v) of SC&ST (POA) Act are also not attracted because in this case complainant herself has stated that she voluntarily went to A-1 and gave consent for intercourse and there is no allegation of abuse in the name of caste. He further submits that earlier basing on whatsapp message sent by her to a third person, which was received by Sub Inspector of Police, on suomoto he has registered the complaint with similar allegations. When 164 Cr.P.C statement of the victim was recorded, the de facto complainant stated that she has not made such allegations.-Taking into consideration the present report and the earlier report given by the complainant, prima facie it appears that the alleged offences are not attracted against the petitioner. Hence, this Court deems it appropriate to grant bail to the petitioner.<p>THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI</p><p>CRIMINAL PETITION NO.4288 of 2021</p><p>ORDER:-</p><p> This petition is filed under Sections 437 and 439 of Code of</p><p>the Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking regular bail</p><p>to the petitioner/A-1 in connection with Crime No.278 of 2021 of</p><p>Buttaigudem Police Station, West Godavari District, for the offences</p><p>punishable under Sections 376(2)(n), 366, 370, 420 r/w 109 of the</p><p>Indian Penal Code, 1860, Sections 3(1)(w)(i) and 3(2)(v) of SC&ST</p><p>(POA) Amendment Act, 2015 and Section 5 of Immoral Traffic</p><p>(Prevention) Act, 1956.</p><p>2. The case of prosecution is that A-1 is working as Project</p><p>Officer, ITDA, KR Puram and the de facto complainant belongs to STKoya applied for the post of attender in ITDA and the 2nd accused</p><p>represented that he has got acquaintance with A-1 and he will</p><p>provide Government job. On 20.11.2020, A-2 called on the</p><p>complainant over phone and informed that the order copy is with A-1</p><p>and he has to personally serve the copy to her and on that the</p><p>complainant approached the ITDA office and returned as A-1 was not</p><p>available in the office. Again on 10.12.2020, A-2 made a call to the</p><p>complainant, informed her that A-1 is ready with the copy of order to</p><p>serve to her and asked her to meet A-1 for collecting the order copy</p><p>and that A-2 took her on his vehicle to the quarters of A-1. A-2</p><p>handed over her to A-3, A-3 took her from the back door of the</p><p>quarters of A-1. Accordingly, the complainant went to the quarters of</p><p>A-1, on that A-1 ascertained the particulars and asked her to</p><p>participate in sexual intercourse with him if she wants job of</p><p>attendor. The complainant agreed and participated in sexual </p><p>2</p><p>intercourse with A-1 and later A-2 on his motorcycle dropped at her</p><p>house. On 20.12.2020 A-2 called the complainant informing that A-1</p><p>would definitely give the order copy to her and A-4 would come to her</p><p>to pick her up. In that aspect, the complainant waited at the road. At</p><p>that time, A-4 to A-7 came on their bikes and took her to the</p><p>quarters of A-1, believing that A-1 would give the order copy to her.</p><p>A-1 again sexually enjoyed her. Again 15 days later, A-2 asked her to</p><p>meet A-1. Then, she abused A-2 and warned him severely and on</p><p>that A-2 threatened her. Basing on the said report, the present crime</p><p>was registered.</p><p>3. Heard Sri Chandrasekhar Ilapakurti, learned counsel for the</p><p>petitioner and learned Assistant Public Prosecutor for the</p><p>respondent-State.</p><p>4. Learned counsel for petitioner submits that even if all the</p><p>allegations are taken on its face value, the aforementioned offences</p><p>are not attracted. Even as per the complaint, it is with the consent of</p><p>complainant they had sexual intercourse, Section 376 IPC has no</p><p>application. He submits that Sections 3(1)(w)(i) and 3(2)(v) of SC&ST</p><p>(POA) Act are also not attracted because in this case complainant</p><p>herself has stated that she voluntarily went to A-1 and gave consent</p><p>for intercourse and there is no allegation of abuse in the name of</p><p>caste. He further submits that earlier basing on whatsapp message</p><p>sent by her to a third person, which was received by Sub Inspector of</p><p>Police, on suomoto he has registered the complaint with similar</p><p>allegations. When 164 Cr.P.C statement of the victim was recorded,</p><p>the de facto complainant stated that she has not made such</p><p>allegations. He further submits that the de facto complainant for the </p><p>3</p><p>reasons best known to her, has implicated the petitioner and he has</p><p>been languishing in jail since 25.06.2021.</p><p>5. Learned Assistant Public Prosecutor on the other hand</p><p>submits that petitioner has promised the complainant to secure a job</p><p>and exploited her sexually and there are specific overt acts against</p><p>the petitioner. He further submits that investigation is pending, as</p><p>such, at this stage petitioner is not entitled for bail.</p><p>6. Taking into consideration the present report and the earlier</p><p>report given by the complainant, prima facie it appears that the</p><p>alleged offences are not attracted against the petitioner. Hence, this</p><p>Court deems it appropriate to grant bail to the petitioner.</p><p>7. Accordingly, this Criminal Petition is allowed. The petitioner/</p><p>A-1 shall be enlarged on bail in Crime No.278 of 2021 of</p><p>Buttaigudem Police Station, West Godavari District on his executing</p><p>self bond for Rs.20,000/- (Rupees twenty thousand only) with two</p><p>sureties for a like sum each to the satisfaction of the Court of the</p><p>Judicial First Class Magistrate, Jangareddygudem, West Godavari</p><p>District.</p><p> Consequently, miscellaneous applications pending, if any, shall</p><p>stand closed.</p><p> ___________________________</p><p> LALITHA KANNEGANTI, J</p><p>Date: 05.08.2021</p><p>KA </p><p>4</p><p>THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI</p><p>(Allowed)</p><p>CRIMINAL PETITION No. 4288 of 2021</p><p>Date: 05.08.2021</p><p>KA </p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-45258757506486455642021-08-06T10:30:00.002+05:302021-08-06T10:32:17.319+05:30presence at the scene of offence,=deceased took cool drink in his shop and, thereafter, the incident in question took place. If that is so, the post-mortem certificate issued by PW14 vide Ex.P7 should give an indication of the presence of some liquid in the stomach, but the said report is otherwise. Therefore, the inconsistencies in the evidence of PW1, PW2, PW6 and PW7 throw any amount of doubt with regard to their presence at the scene of offence, at the time of incident.;presence of street lights = Ex.P5 is the scene observation report, which was prepared by the investigating officer in the presence of PW13. This document does not show existence of street lights at the scene. Even PW13 and PW17 did not clearly say about the existence of street lights or electrical poles at the scene of offence, which create a doubt as to the presence of street lights and PW1 and PW2 witnessing the incident with the help of street lights.;recovery of M.O.1 = On one hand, PW1 and PW2 deposed that M.O.1 was taken away by the accused along with him after attacking the deceased, but some speak about recovery of M.O.1 at the scene pursuant to the arrest of the accused. In view of the above, the recovery of M.O.1 at the instance of A1, cannot be believed. Apart from that, there is no evidence that the blood found on M.O.1 is that of the deceased, leave alone matching of blood group.- The conviction and sentence recorded against the appellant/accused No. 1 in the Judgment, dated 21.03.2014, in Sessions Case No. 71 of 2012 on the file of the III Additional Sessions Judge, Guntur, for the offence punishable under Section 302 I.P.C., is set- aside and he is acquitted for the said offence<p><br /></p><p>AP HIGH COURT AMARAVATHI</p><p><br /></p><p>1</p><p>THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR</p><p>AND</p><p>THE HON’BLE SRI JUSTICE B. KRISHNA MOHAN</p><p>Criminal Appeal No. 392 of 2014</p><p><br /></p><p>JUDGMENT: (Per Hon’ble Sri Justice C.Praveen Kumar)</p><p> Heard Sri. Chandra Sekhar Ilapakurti, learned Counsel</p><p>appearing for the Appellant and Sri. S. Dushyanth Reddy,</p><p>Additional Public Prosecutor, through Blue Jeans video</p><p>conferencing APP and with their consent, the appeal is disposed</p><p>of.</p><p>1) Accused No. 1 to 4 were charged for the offence punishable</p><p>under Sections 302 read with 34 of Indian Penal Code, 1860</p><p>[‘I.P.C.’] for causing the death of one Marri Veeranarayana</p><p>[‘Deceased’] on 08.06.2011 at about 12.30 a.m. By its</p><p>Judgment, dated 21.03.2014, in Sessions Case No. 71 of 2012,</p><p>the III Additional Sessions Judge, Guntur, while acquitting</p><p>Accused No. 3 and 4 for the offence punishable under Section</p><p>302 read with 34 I.P.C., convicted Accused No. 1 for the offence</p><p>punishable under Section 302 I.P.C., and sentenced him to</p><p>suffer imprisonment for life and to pay fine of Rs.1,000/-. The</p><p>case against Accused No. 2 was abated as he died on</p><p>18.06.2013.</p><p>2) The facts disclose as under:</p><p>a) PW1 is the father of the deceased, while PW2 is the</p><p>mother. PW8 is the wife of the deceased. There were </p><p>2</p><p>disputes between the deceased and A1 and A2 with regard</p><p>to accused playing songs loudly in their auto. A quarrel</p><p>ensued on 01.01.2011, in which the accused and the</p><p>deceased received injuries. Accordingly, the deceased was</p><p>admitted in N.R.I. Hospital, but, however, no case was filed</p><p>in respect of the said incident. Keeping in view the above</p><p>incident, it is said that the accused hatched a plan to do</p><p>away with the deceased. It is further stated that, in the</p><p>month of April, 2011, the deceased along with his friends</p><p>quarrelled with A4 at Surya Wines, Chinakakani, in which</p><p>A4 received injuries.</p><p>b) On 08.06.2011 at about 10.00 P.M., PW1 and PW2 came</p><p>to know that a quarrel was going on between A1, A2 and</p><p>the deceased at a wine shop. At about 11.30 P.M., PW1</p><p>and PW2 came on to the main road in search of their son</p><p>and waited near the Arch for half-an-hour. It is said that at</p><p>12.30 midnight, the deceased went to the cool drink shop</p><p>of PW7, consumed cool drink and left on his motorbike. At</p><p>that time, PW7 claims to have noticed an auto standing by</p><p>the side of his shop in which A1, A2 and A4 were present.</p><p>The said auto followed the deceased.</p><p>c) The deceased came on his motorcycle from the petrol bunk</p><p>side and after moving ahead near the crossing of NH5, an</p><p>auto came from Vijayawada side and dashed the</p><p>motorcycle on which the deceased was going to his village. </p><p>3</p><p>As a result of the impact, the deceased fell down on the</p><p>road. Thereafter, A1, A2 and another person came out of</p><p>the auto. A1 beat the deceased with a cement stone, while</p><p>A2 and another person held the hands and legs of the</p><p>deceased. A3 also got down from the auto along with A1</p><p>and A2. It is said that PW1 and PW2 went to the rescue of</p><p>their son, but the three accused threatened them. At that</p><p>time, one Thiruveedhula Naga Bhuyshanam [NE] and</p><p>Kuraganti Rambabu [PW6] came to the scene. Two more</p><p>persons, who are coming from Vijayawada side also came</p><p>there on hearing cries of PW1 and PW2. On seeing them,</p><p>A1 to A3 ran away by taking cement stone, leaving the</p><p>auto at the scene. PW1 and PW2 rushed towards their son,</p><p>who was lying on the road and within five minutes he died.</p><p>Thereafter, the relatives of PW1 and PW2 came there and</p><p>PW1 along with them went to the police station and lodged</p><p>a report with PW16 –Sub-Inspector of Police, who</p><p>registered a case in Crime No. 76 of 2011 for the offence</p><p>punishable under Section 302 read with 34 I.P.C. Ex.P11</p><p>is the First Information Report. Further investigation, in</p><p>this case, was taken up by PW17, who on receipt of the</p><p>F.I.R. at 3.00 A.M., visited Mangalagiri Rural Police</p><p>Station, obtained a copy of the First Information Report</p><p>and took up investigation. </p><p>4</p><p>d) PW17 along with PW16 proceeded to the scene of offence,</p><p>which is in-front of Raj Kamal Agro Model Farm at</p><p>Chinakakani Village. He noticed the dead body lying on the</p><p>divider. A motorcycle and an auto were present near the</p><p>dead body. PW17 examined PW1 and PW2 and recorded</p><p>their statements. After moving in and around Chinakakani</p><p>and Kaza villages to enquire about the culprits, he</p><p>returned back to the scene at 6.30 A.M. and in the</p><p>presence of PW13, inspected the scene of offence. During</p><p>observation, he seized blood stained earth and controlled</p><p>earth and the auto of accused. M.O. 2 to M.O. 5 are the</p><p>articles seized at the scene. Ex.P5 is the observation report</p><p>and Ex.P12 is the rough sketch of the scene. He also got</p><p>photographed the scene, which are placed on record as</p><p>Ex.P13. Thereafter, in the presence of PW13, he conducted</p><p>inquest over the dead body under Ex.P6. During inquest,</p><p>he examined PW8 and others and recorded their</p><p>statements, and also seized M.O.6 to M.O.8. Thereafter,</p><p>the dead body was sent for post-mortem examination.</p><p>e) PW14 - the Civil Assistant Surgeon, in Government</p><p>General Hospital, Mangalagiri, conducted autopsy over the</p><p>dead body and issued Ex.P7 post-mortem report. He</p><p>noticed about 11 injuries on the body of the deceased and</p><p>the skull was open. According to him, the cause of death </p><p>5</p><p>might have been due to head injury with contusion of</p><p>brain and large hemotoma.</p><p>f) PW17 who continued with the investigation arrested the</p><p>accused on 27.06.2011 in the presence of PW15 and</p><p>others. He interrogated the accused separately and</p><p>recorded their confessions. Basing on the confession made</p><p>by A1, they reached the compound of Raj Kamal Agro</p><p>Model Farms and a blood stained concrete stone is said to</p><p>have been discovered. M.O.1 is the cement stone. The</p><p>same was seized under Ex.P9 [Mahazar]. After collecting all</p><p>the necessary documents, a charge-sheet came to be filed,</p><p>which was taken on file as P.R.C. No. 33 of 2011 on the file</p><p>of Additional Judicial Magistrate of First Class,</p><p>Mangalagiri.</p><p>3) On appearance of the accused, copies of documents as</p><p>required under Section 207 Cr.P.C., came to be furnished. Since</p><p>the case is triable by Court of Sessions, the matter was</p><p>committed to the Sessions Court under Section 209 Cr.P.C.</p><p>Basing on the material available on record, charges as referred</p><p>to above came to be framed, read over and explained to the</p><p>accused, to which, the accused pleaded not guilty and claimed</p><p>to be tried.</p><p>4) In support of its case, the prosecution examined PW1 to</p><p>PW17 and got marked Ex.P1 to Ex.P13, beside marking MOs. 1</p><p>to 8. Out of 17 witnesses examined by the prosecution, PW3, </p><p>6</p><p>PW5 and PW9 did not support the prosecution case and they</p><p>were treated hostile by the prosecution. After completion of</p><p>prosecution evidence, the accused were examined under Section</p><p>313 Cr.P.C. with reference to the incriminating circumstances</p><p>appearing against them in the evidence of prosecution</p><p>witnesses, to which they denied, but, however, did not adduce</p><p>any evidence in support of their defence.</p><p>5) Relying upon the evidence of PW1 and PW2, coupled with</p><p>the enmity between the accused and the deceased, the learned</p><p>Sessions Judge convicted A1. Challenging the same, the present</p><p>appeal came to be filed.</p><p>6) Sri. Chandra Sekhar Ilapakurti, learned counsel appearing</p><p>for the appellant submits that there is any amount of doubt with</p><p>regard to PW1 and PW2 witnessing the incident. He further</p><p>submits that Ex.P1, which is said to have been lodged by PW1 is</p><p>bereft of details, which are now mentioned by PW1 while giving</p><p>evidence in court. Apart from that, when the quarrel was at the</p><p>wine shop, there was no necessity for PW1 and PW2 to stay at</p><p>the arch awaiting for the arrival of the deceased.</p><p>(ii) The learned counsel further submits that PW1 and</p><p>PW2 claims to have witnessed the incident under the</p><p>illumination of lights, but, the mediator report and scene of</p><p>offence does not anywhere indicate existence of any lights at the</p><p>scene. Since, the incident took place in the dead of night,</p><p>possibility of they identifying the appellant, even assuming to be </p><p>7</p><p>present, at the scene, is highly doubtful. He further submits that</p><p>the medical evidence is contrary to ocular evidence, and, as</p><p>such, there is any amount of doubt with regard to the timing of</p><p>the incident. Apart from that, the learned counsel would</p><p>contend that when the evidence of PW7 is to the effect that the</p><p>accused took cool drink at his shop at 12.30 midnight,</p><p>possibility of the incident happening prior to that time is</p><p>impossible, more so, having regard to the contents of the</p><p>stomach, as spoken to by the post-mortem doctor. Further, the</p><p>weapon, which is alleged to have been used, is a cement stone,</p><p>which could not have carried with them by the accused, leaving</p><p>the auto. Hence, the recovery of M.O.1 –cement stone at the</p><p>instance of the accused is doubtful, more so, when there is a</p><p>contra version from other prosecution witnesses.</p><p>7) The same is opposed by the learned Public Prosecutor</p><p>contending that the evidence of PW1 and PW2 who are the eye</p><p>witnesses to the incident cannot be disbelieved, merely because</p><p>Ex.P1 is silent on some aspects. In other words, his argument</p><p>appears to be that, the First Information Report is not a</p><p>encyclopaedia, which should contain all the details.</p><p>(ii) Coming to the presence of PW1 and PW2 and they</p><p>witnessing the incident, the learned Additional Public Prosecutor</p><p>would submit that they being known to the A1 and A2 even prior</p><p>to the incident, identifying them in the night cannot be said to</p><p>be improbable. The discrepancies, if any, pointed out with </p><p>8</p><p>regard to the timing of the incident are trivial in nature, which</p><p>do not warrant disbelieving the prosecution story. According to</p><p>him, the conviction and sentence imposed by the trial court</p><p>warrants no interference.</p><p>8) The point that arises for consideration is, whether the</p><p>prosecution was able to bring home the guilt of the accused</p><p>beyond reasonable doubt?</p><p>9) In order to appreciate the rival contentions, it is just and</p><p>proper to refer to the evidence of some of the prosecution</p><p>witnesses.</p><p>10) PW1 in his evidence-in-chief deposed that, on the date of</p><p>incident, at about 10.00 P.M., he came to know that A1 and A2</p><p>quarrelled with his son [deceased] at a wine shop. At about</p><p>11.30 P.M., PW1 and PW2 came on to the main road in search of</p><p>their son [deceased]; reached near an arch on the main road and</p><p>waited there for half-an-hour. At that time, their son [deceased]</p><p>came on a motorcycle from petrol bunk side and after the</p><p>crossing on NH5, an auto came from the opposite side and</p><p>dashed the motorcycle, as a result of which, the deceased fell</p><p>down on the road. Then, A1, A2 and another person got down</p><p>from the auto. A1 is said to have beat the deceased with a</p><p>cement stone [M.O.1], while A2 and another person caught hold</p><p>of the hands and legs of the deceased. According to the</p><p>prosecution, the incident took place because of earlier disputes </p><p>9</p><p>between both the groups, in which the deceased as well the</p><p>accused received injuries and were admitted in N.R.I. Hospital.</p><p>11) At this stage, it would be appropriate to refer to the crossexamination of PW1, which is as under:</p><p>“It is true in Ex.P1 name of A3 is not given. It is true I did not</p><p>give the name of A3 before police and also I have not given the</p><p>description of third person who came along with A1 and A2 in</p><p>auto in Ex.P1 and also to police. It is true I did not mention in</p><p>Ex.P1 that I can identify the 3rd person and no test of</p><p>identification parade is conducted in respect of 3rd person.</p><p>Ex.P1 was written by a constable.</p><p>It is true I have not mentioned in Ex.P1 that there are lights on</p><p>either side of the road and I saw the incident in a illumination</p><p>of lights and I have not stated same to police. It is true I have</p><p>not mentioned in Ex.P1 that immediately after the incident my</p><p>relatives came to the scene of offence and I went along with</p><p>them to the police station and I have not stated the same</p><p>before the police. I cannot give the number of auto and motor</p><p>cycle i.e., MO2 and 3. It is not true to suggest that the cement</p><p>stone which I stated is not MO1. It is true I have not mentioned</p><p>in Ex.P1 that I was standing along with LW2 and after 5</p><p>minutes I went to the place where my deceased son was lying</p><p>on the road margin. It is not true to suggest that I did not refer</p><p>the weapon of offence as cement stone in Ex.P1. It is true that I</p><p>did not mention the names of LW5 and LW6 and I did not state</p><p>the names of LW5 and 6 before the police. It is true I did not</p><p>mention the names of other witnesses in Ex.P1. It is true that I</p><p>did not state in Ex.P1 that I and LW2 reached near the Arch on</p><p>the main road and waited for half-an-hour. It is true I did not</p><p>mention in Ex.P1 report that deceased came on motor cycle</p><p>from the side of petrol bunk. It is not true to suggest that</p><p>specifically I did not state in Ex.P1 that the deceased was</p><p>coming from Guntur side and the auto is coming from</p><p>Vijayawada side.” </p><p>10</p><p>12) From the above admissions, it is very much clear that</p><p>Ex.P1 is silent on many crucial aspects. Not only with regard to</p><p>the name but also participation of one of the assailant;</p><p>witnessing the incident in the illumination of street lights; PW1</p><p>and PW2 proceeding near to the arch and waiting there for halfan-hour; and the deceased coming on a motorcycle from the</p><p>petrol bunk side.</p><p>13) PW2 is the mother of the deceased, whose evidence though</p><p>toes in line with the evidence of PW1, also states that she saw</p><p>the incident in the illumination of lights situated on either side</p><p>of the road. But in the cross-examination, she admits that, she</p><p>did not state to police that she saw the incident in the</p><p>illumination of lights and that she did not state to police that</p><p>she and PW1 went to the arch on the main road. It would be</p><p>appropriate to extract the relevant portion from the crossexamination of PW2.</p><p>“It is true I did not state to the Police that I and PW1 went near</p><p>the Arch on main road. It is true I did not state to the Police that</p><p>I saw the incident in illumination of lights.”</p><p>14) From the evidence of these two witnesses, it is very clear</p><p>that her version in examination-in-chief, namely, that on</p><p>receiving information about a quarrel between the accused and</p><p>deceased near wine shop, proceeded towards arch and waited</p><p>there for half-an-hour are missing not only in the First</p><p>Information Report given by PW1 but also in the earlier</p><p>statement recorded by the police during the course of </p><p>11</p><p>investigation. Therefore, the version of PW1 and PW2 that they</p><p>saw the incident while standing at the arch, has to be viewed</p><p>with suspicion.</p><p>15) The prosecution tried to rely on the evidence of PW4 to</p><p>show that PW1 and PW2 were present at the scene. A perusal of</p><p>the evidence of PW4 would show that on 08.06.2011 at about</p><p>12.30 A.M., while he was proceeding to Chinakakani from</p><p>Guntur, he found the deceased lying on the middle of the</p><p>highway and PW1 and PW2 present by deceased side. He also</p><p>observed a blood stained cement stone lying beside the</p><p>deceased, a motorbike and an auto at that place. A reading of</p><p>the evidence of PW4 shows as if M.O.1-cement stone alleged to</p><p>have been used by A1 was present by the side of the deceased,</p><p>which is contrary to the evidence of PW1, who in his evidence</p><p>deposed stating that A1 carried away M.O.1 cement stone along</p><p>with him. Further, his evidence does not indicate PW1 and PW2</p><p>being present at the time of attack.</p><p>16) PW6 is a resident of Kaza Village, who in his evidence</p><p>deposed that, he knows PW5 and about one and half year ago he</p><p>and PW5 went to Vijayawada on a motorcycle to purchase chill</p><p>seeds and stayed at Mangalagiri for about one and half hour.</p><p>When PW6 and PW5 reached the road near Chinakakani, they</p><p>heard cries. PW6 went there and saw A1 and A2 hitting the</p><p>deceased with a stone. He identifies A1 as Balaji and A4 as</p><p>Nagaraju [incorrect]. But, however, he moves closely to the place </p><p>12</p><p>where they are standing and identifies A1, A2 and third person</p><p>as A3. He in his evidence deposed that when he and PW5 tried</p><p>to rescue the deceased, A1 to A3 threatened them. He also</p><p>speaks about the presence of PW1 and PW2.</p><p>17) In the cross-examination, PW6 categorically admits that</p><p>108 ambulance came to the scene of offence to a call made by</p><p>somebody and the persons who came with the ambulance</p><p>declared the deceased dead. But, one fact that is to be noted</p><p>here is that, neither PW1 nor PW2 deposed about the coming of</p><p>ambulance to the scene. Further, PW6 admits that a panchayat</p><p>was held relating to a theft of a motor-pump, in which elders</p><p>made him to pay Rs.10,000/- to one Balineni Bhaskara Rao. He</p><p>further admits that the Sub-Inspector of Police examined him at</p><p>the scene of offence on the next day morning at 11.30 A.M.</p><p>18) The evidence of this witness has to be viewed with</p><p>suspicion; firstly, for the reason that the village panchayat found</p><p>him guilty of committing theft of a motor-pump and he was</p><p>asked to pay Rs.10,000/- to one Balineni Bhaskara Rao;</p><p>secondly, he claims to have gone to Vijayawada to purchase</p><p>chilli seeds and after reaching Mangalagiri, he and PW5 waited</p><p>for one and half hour and during that period PW6 claims to have</p><p>seen the incident. But, PW5 did not support the version of PW6</p><p>with regard to witnessing the incident. On the other hand, his</p><p>version is that by the time they reached Mangalagiri, they only</p><p>noticed the dead body of the deceased lying on the road. </p><p>13</p><p>19) One another fact, which requires to be noted here is that</p><p>the evidence of PW6 is silent with regard to the illumination of</p><p>lights on either side of the road. Being a stranger, he could have</p><p>identified the accused in the darkness, more so, in the court,</p><p>when no test identification parade was held. Therefore, PW6</p><p>cannot be said to be a wholly reliable witness, having regard to</p><p>the contents of Ex.P1 and the evidence of PW1 and PW2, which</p><p>we have referred to earlier.</p><p>20) Coming to the evidence of PW7, he in his evidence deposed</p><p>that, at about 12.30 midnight the deceased came to his cool</p><p>drink shop, consumed cool drink and left on his motorbike. He</p><p>claims to have seen an auto standing by the side of his shop</p><p>with A1, A2 and A4 in it, which followed the accused. After</p><p>sometime, he heard a big noise from the arch side and when he</p><p>went to the place, noticed PW1 and PW2 present and A1 hitting</p><p>the deceased with a stone while A2 was present with A1. He</p><p>claims to have gone to the rescue of the deceased, but A1</p><p>threatened to kill him also. After sometime, two people from</p><p>Kaza Village came to the scene who also tried to rescue the</p><p>deceased. However, on seeing the people gathered at the scene,</p><p>the accused ran away.</p><p>21) The evidence of PW7 assumes great significance as the</p><p>learned Public Prosecutor relied upon his evidence to</p><p>corroborate the version of PW1 and PW2. PW7 in his crossexamination admits that there was a faction in his village and </p><p>14</p><p>his father contested for the post of President of the village, lost</p><p>the election and settled in Chinakakani village. He further</p><p>admits that the arch where the incident took place is situated at</p><p>a distance of half a kilometre from the petrol bunk, which is</p><p>situated towards Guntur side. It would be appropriate to extract</p><p>the same, which is as under:</p><p>“My native place is Neerukoknda Village. It is a faction village.</p><p>My father contested as President of our village and he lost the</p><p>election. It is true, due to faction in our village I left the village</p><p>and settled at Chinakakani village. It is true the petrol bunk is</p><p>situated towards Guntur City side. It is true the Arch is</p><p>situated half kilometre from the petrol bunk.”</p><p>22) From the evidence of this witness [PW7], it is very much</p><p>clear that at 12.30 in the midnight, the deceased took a cool</p><p>drink and then left on a motorbike. He noticed an auto standing</p><p>by the side of his shop, wherein A1, A2 and A4 were present. He</p><p>excludes the presence of A4 while giving evidence whose</p><p>presence is not spoken to by PW1, PW2 and PW6. According to</p><p>him, after the deceased left his shop, he heard a big sound from</p><p>the arch side. This arch, according to him is situated at a</p><p>distance of half a kilometre from the petrol bunk. This portion of</p><p>evidence of PW7 has to be tested with the evidence of PW1, who</p><p>in his evidence deposed, that while he and PW2 were waiting</p><p>near the arch, the deceased came on a motorcycle from a petrol</p><p>bunk side. Though, PW7 did not mention the distance between</p><p>his cool drink shop and petrol bunk, but definitely his own</p><p>evidence show that his shop is situated towards the petrol bunk </p><p>15</p><p>and the arch is at a distance of half a kilometre from the petrol</p><p>bunk. That being so, PW7 could not have heard the sound of</p><p>auto dashing the deceased.</p><p>23) Apart from that, the evidence of PW1 and PW2 show that</p><p>the auto came from Vijayawada side towards Guntur and</p><p>dashed the motorcycle of the deceased, while the evidence of</p><p>PW7 is to the effect that after the deceased left, the auto which</p><p>was standing by the side of his shop, followed the motorcycle,</p><p>meaning thereby that the auto dashed the motorcycle from</p><p>behind, which is not the case of the prosecution. Therefore, the</p><p>version of PW7 is at total variance with the version of PW1 and</p><p>PW2. Further, the evidence of PW7 is to the effect that the</p><p>deceased took cool drink in his shop and, thereafter, the</p><p>incident in question took place. If that is so, the post-mortem</p><p>certificate issued by PW14 vide Ex.P7 should give an indication</p><p>of the presence of some liquid in the stomach, but the said</p><p>report is otherwise. Therefore, the inconsistencies in the</p><p>evidence of PW1, PW2, PW6 and PW7 throw any amount of</p><p>doubt with regard to their presence at the scene of offence, at</p><p>the time of incident.</p><p>24) Apart from the contradictions pointed out in the evidence</p><p>of PW1 and PW2 vis-à-vis Ex.P1 report, the argument of the</p><p>learned counsel for the appellant, as stated earlier is that these</p><p>two witnesses could not have witnessed the incident with the</p><p>help of street lights as there are no street lights at the scene. </p><p>16</p><p>Ex.P5 is the scene observation report, which was prepared by</p><p>the investigating officer in the presence of PW13. This document</p><p>does not show existence of street lights at the scene. Even PW13</p><p>and PW17 did not clearly say about the existence of street lights</p><p>or electrical poles at the scene of offence, which create a doubt</p><p>as to the presence of street lights and PW1 and PW2 witnessing</p><p>the incident with the help of street lights.</p><p>25) Insofar as recovery of M.O.1 is concerned, as stated earlier,</p><p>there are varying versions about the same. On one hand, PW1</p><p>and PW2 deposed that M.O.1 was taken away by the accused</p><p>along with him after attacking the deceased, but some speak</p><p>about recovery of M.O.1 at the scene pursuant to the arrest of</p><p>the accused. In view of the above, the recovery of M.O.1 at the</p><p>instance of A1, cannot be believed. Apart from that, there is no</p><p>evidence that the blood found on M.O.1 is that of the deceased,</p><p>leave alone matching of blood group.</p><p>26) For the aforesaid reasons, the Criminal Appeal is allowed.</p><p>The conviction and sentence recorded against the</p><p>appellant/accused No. 1 in the Judgment, dated 21.03.2014, in</p><p>Sessions Case No. 71 of 2012 on the file of the III Additional</p><p>Sessions Judge, Guntur, for the offence punishable under</p><p>Section 302 I.P.C., is set- aside and he is acquitted for the said</p><p>offence. Consequently, the appellant/accused No.1 shall be set</p><p>at liberty forthwith, if he is not required in any other case or </p><p>17</p><p>crime. The fine amount, if any, paid by the appellant shall be</p><p>refunded to him.</p><p>27) Consequently, miscellaneous petitions, if any, pending</p><p>shall stand closed.</p><p>_______________________________</p><p>JUSTICE C. PRAVEEN KUMAR</p><p>_______________________________</p><p>JUSTICE B. KRISHNA MOHAN</p><p>Date: 03/08/2021</p><p>S.M.. </p><p>18</p><p>THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR</p><p>AND</p><p>THE HON’BLE SRI JUSTICE B. KRISHNA MOHAN</p><p>Criminal Appeal No. 392 of 2014</p><p>(Per Hon’ble Sri Justice C.Praveen Kumar)</p><p>Date: 03/08/2021</p><p>S.M. </p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-89985583805270856132021-08-02T19:50:00.002+05:302021-08-02T19:50:36.682+05:30The Panguluri Seetammagari Arya Vysya Dharma Satram, which was the owner of certain extents of land in Sy.Nos.296 and 302 of Tirupati village, had initiated eviction proceedings against the persons, who were in possession of the said land. This litigation resulted in O.A.No.23 of 2003 being filed before the Deputy Commissioner of Endowments Kurnool, which came to be allowed on 09.07.2003 ordering eviction of the persons in possession of the said lands. = Directions are given, only by way of clarification, to ensure compliance of the earlier directions of this Court: 1) All those persons, who are said to be in possession of the house/house site in the aforesaid Ac.42.52 cents of land in Sy.Nos.296 and 302 of Tirupati, are permitted to make applications to the Assistant Commissioner of Endowments within a period of three weeks from today, along with all relevant documents and papers.2) At the end of the aforesaid three weeks time, the Assistant Commissioner Endowments shall forward all these applications to the committee, which has already been formed. This exercise shall be completed within one week from the end of the three week period mentioned above. 3) Upon receipt of such applications, the committee shall undertake the exercise of verifying as to who are eligible candidates and the cases of those persons whose applications are being rejected. 4) Once the said two lists are prepared, the respondents shall act strictly in accordance with the directions given by this Court in W.P.No.15138 and 16400 of 2009. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.<p>HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO</p><p>W.P.Nos.13842 and 14457 of 2021</p><p>COMMON ORDER:</p><p>The petitioners in W.P.Nos.13842 of 2021 and 14457 of 2021 are</p><p>residing in Sy.Nos.296 and 302 of Seethammanagar, Muthyalreddipally,</p><p>Tirupati Urban Mandal Rural, Chittoor District. They have approached this</p><p>Court being aggrieved by the proceedings bearing Rc.No.B1/1557/2018,</p><p>dated 06.07.2021 of the Assistant Commissioner, Endowments</p><p>Department, Chittoor, the 3rd respondent herein. As the reliefs sought by</p><p>the petitioners in both these writ petitions are essentially the same, these</p><p>two writ petitions are being disposed of by this common order.</p><p>2. The Panguluri Seetammagari Arya Vysya Dharma Satram,</p><p>which was the owner of certain extents of land in Sy.Nos.296 and 302 of</p><p>Tirupati village, had initiated eviction proceedings against the persons,</p><p>who were in possession of the said land. This litigation resulted in</p><p>O.A.No.23 of 2003 being filed before the Deputy Commissioner of</p><p>Endowments Kurnool, which came to be allowed on 09.07.2003 ordering</p><p>eviction of the persons in possession of the said lands.</p><p>3. Aggrieved by the same, the persons in possession of the</p><p>land had been approached this Court by way of W.P.No.15138 and 16400</p><p>of 2009. This writ petition came to be disposed of on 20.10.2017. The</p><p>operative portion of the said order reads as follows:</p><p>1) The prayer to issue Mandamus is rejected, as this Court</p><p>cannot exercise jurisdiction or discretion under Article 226</p><p>of the Constitution of India.</p><p>2) The possession of 3rd parties or petitioners is admitted</p><p>by all. The District Collector has undertaken vide counter</p><p>affidavit dated 20.04.2011 to provide house-sites to </p><p> RRR,J</p><p>W.P.Nos.13842 and 14457 of 2021</p><p>2</p><p>eligible persons who are in possession of Trust property. It</p><p>is matter of common knowledge that the State</p><p>Government is implementing several welfare schemes</p><p>under which houses and house sites are provided to weak,</p><p>needy and eligible applicants. Therefore, the persons who</p><p>are in possession or desirous of taking</p><p>allotment from Government and vacate from Trust</p><p>property, are allowed to represent to Assistant</p><p>Commissioner, Endowments, the District Collector and the</p><p>Revenue Divisional Officer, Tirupati, by enclosing a copy of</p><p>this order. Such petitioner(s)/applicant(s) furnish all the</p><p>details that are required for consideration of their</p><p>applications for house-site allotment by District Collector.</p><p>On receipt of applications from petitioners, the issue of</p><p>consideration for allotment of house sites is taken up by</p><p>the Assistant Commissioner, Endowments with the</p><p>Revenue Divisional Officer and the Tahsildar. As stated in</p><p>the counter affidavit, house-sites are allotted to eligible</p><p>applicants. The said exercise shall be completed within a</p><p>period of three months from the date of receipt of a copy</p><p>of this order. For a period of four months, all the parties</p><p>are directed to maintain status quo as on today. The</p><p>petitioners who are ineligible or not interested in</p><p>representing to authorities, it is made clear the</p><p>respondents can implement the orders passed under Act</p><p>30 of 1987 for eviction of encroachers.</p><p>3) The District Collector constitutes a committee consisting</p><p>of Deputy Commissioner/Assistant Commissioner,</p><p>Endowments, Revenue Divisional Officer/Tahsildar and</p><p>Deputy Superintendent of Police/SHO for expeditious</p><p>consideration and implementation of the directions issued</p><p>by this Court in the present writ petitions.</p><p>The Committee examines the request of each eligible</p><p>person(s) and passes orders as are fit and provides house</p><p>or house-sites to eligible applicants in the schemes</p><p>implemented by Government of Andhra Pradesh. In the</p><p>alternative, if request for assignment is refused, the</p><p>decision is intimated to applicant(s) and the Assistant</p><p>Commissioner is entitled to evict such person(s). </p><p> RRR,J</p><p>W.P.Nos.13842 and 14457 of 2021</p><p>3</p><p>4) This Court, as already held, is not expressing a view on</p><p>the effect or nature of ossession claimed by the</p><p>petitioners. With a view to restricting the order only for the</p><p>petitioners/eligible persons, this Court directs the Assistant</p><p>Commissioner of Endowments to forthwith inspect Survey</p><p>Nos.296 and 302, take down details of occupants of</p><p>subject matter of writ petitions and prepare a list of all the</p><p>encroachers as on the date of inspection, which can be</p><p>relied on while examining the applications given for</p><p>allotment of house site pattas.</p><p>4. It appears that the writ appeal being W.A.No.528 of 2018</p><p>came to be filed against the order in W.P.Nos.15138 and 16400 of 2009</p><p>and the same was dismissed for want of prosecution, vide order dated</p><p>31.10.2019. Subsequently, a restoration petition has also been filed and</p><p>the same is pending. However, for the present, it must be held that the</p><p>order of the learned Single Judge in W.P.Nos.15138 and 16400 of 2009</p><p>dated 20.10.2017 holds the field.</p><p>5. In a parallel proceeding, the Assistant Commissioner of</p><p>Endowments by proceedings in Rc.No.B1/1557/2018 Adm., dated</p><p>06.07.2021 issued communication to the Superintendant of Police Tirupati</p><p>(Urban) and the Revenue Divisional Officer, Tirupati to depute necessary</p><p>assistance to enable the Assistant Commissioner Endowments to evict the</p><p>encroachers to an extent of Ac.42.52 cents of land situated in</p><p>Muthyalareddypalle, Tirupati Town, Chittoor District in Sy.Nos.296 and</p><p>302 belonging to the 8th respondent in W.P.No.13842 of 2021. This</p><p>communication is said to have been issued in pursuance of the directions</p><p>given by this Court in W.P.Nos.15138 and 16400 of 2009.</p><p>6. Heard Sri G. Tuhin Kumar, learned counsel for the</p><p>petitioners in W.P.No.13842 of 2021, Sri M. Ramalingeswara Reddy, </p><p> RRR,J</p><p>W.P.Nos.13842 and 14457 of 2021</p><p>4</p><p>learned counsel for the petitioners in W.P.No.14457 of 2021 and learned</p><p>Government Pleader for Endowments Sri K.S. Gopala Krishna appearing</p><p>for the 8th respondent-trust.</p><p>7. The grievance of the petitioners is that they are sought to be</p><p>evicted without following the directions issued in W.P.No.15138 and</p><p>16400 of 2009 dated 20.10.2017.</p><p>8. The learned Government Pleader has submitted written</p><p>instructions received by her from the Assistant Commissioner of</p><p>Endowments, Chittoor.</p><p>9. A perusal of the operative portion of the directions given by</p><p>this Court in W.P.Nos.15138 and 16400 of 2009 dated 20.10.2017 would</p><p>clearly show that the persons in possession of the trust property are to</p><p>forward applications to the Assistant Commissioner Endowments, the</p><p>District Collector and the Revenue Divisional Officer, Tirupati, for</p><p>considering their applications for house site allotment by the District</p><p>Collector upon receipt of such applications from the petitioners in the said</p><p>writ petitions. The said applications are to be considered for allotment of</p><p>house sites and necessary house sites would be allotted to the eligible</p><p>applicants within a period of three months from the date of receipt of the</p><p>copy of the order of this Court in W.P.Nos.15138 and 16400 of 2009. For</p><p>this purpose the District Collector would constitute a committee which</p><p>would consider the requests of each eligible person and pass orders as are</p><p>fit for either providing house/house site to the eligible applicants in any of</p><p>the schemes implemented by the Government of Andhra Pradesh, and in</p><p>the event of such request being refused intimate the said decision to the</p><p>applicants. There was also a direction that upon such intimation of refusal,</p><p>the Assistant Commissioner would be entitled to evict such persons.</p><p> RRR,J</p><p>W.P.Nos.13842 and 14457 of 2021</p><p>5</p><p>10. In the present case, none of the above exercises seems to</p><p>have been carried out either by the petitioners, who have now</p><p>approached this Court or by the authorities who were directed to</p><p>constitute a committee and consider all these issues.</p><p>11. Instead of complying with the said directions, it appears that</p><p>the Assistant Commissioner, Endowments has initiated eviction</p><p>proceedings and sought the assistance of the Superintendent of Police</p><p>and the Revenue Divisional Officer, Tirupati. The instructions submitted by</p><p>the learned Government Pleader also do not show that the directions of</p><p>this Court have been complied with. In fact, in paragraph-8 of the said</p><p>instructions, it is stated that a committee was, in fact, set up. However,</p><p>the committee has not undertaken the main task of going through the</p><p>applications and considering the merits of the applications.</p><p>12. In these circumstances, these writ petitions are disposed of</p><p>with a direction to the respondents to act strictly in compliance with the</p><p>directions of this Court in W.P.No.15138 and 16400 of 2009 dated</p><p>20.10.2017.</p><p>13. The following directions are given, only by way of</p><p>clarification, to ensure compliance of the earlier directions of this Court:</p><p>1) All those persons, who are said to be in possession of the</p><p>house/house site in the aforesaid Ac.42.52 cents of land in</p><p>Sy.Nos.296 and 302 of Tirupati, are permitted to make applications</p><p>to the Assistant Commissioner of Endowments within a period of</p><p>three weeks from today, along with all relevant documents and</p><p>papers.</p><p> RRR,J</p><p>W.P.Nos.13842 and 14457 of 2021</p><p>6</p><p>2) At the end of the aforesaid three weeks time, the Assistant</p><p>Commissioner Endowments shall forward all these applications to</p><p>the committee, which has already been formed. This exercise shall</p><p>be completed within one week from the end of the three week</p><p>period mentioned above.</p><p>3) Upon receipt of such applications, the committee shall undertake</p><p>the exercise of verifying as to who are eligible candidates and the</p><p>cases of those persons whose applications are being rejected.</p><p>4) Once the said two lists are prepared, the respondents shall act</p><p>strictly in accordance with the directions given by this Court in</p><p>W.P.No.15138 and 16400 of 2009.</p><p>There shall be no order as to costs. As a sequel, pending</p><p>miscellaneous petitions, if any, shall stand closed.</p><p> _________________________</p><p>R. RAGHUNANDAN RAO, J.</p><p>27th July, 2021</p><p>Js.</p><p> RRR,J</p><p>W.P.Nos.13842 and 14457 of 2021</p><p>7</p><p>HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO</p><p>W.P.Nos.13842 and 14457 of 2021</p><p>27th July, 2021</p><p>Js.</p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-60034803168089662972021-08-02T19:44:00.001+05:302021-08-02T19:44:05.905+05:30Reservations in out sourcing services in resepct of Hindu Temples = As the Circulars and Government Orders relate to outsourcing employees in the Government organizations, and the temples and the Hindu religious institutions are not Government organizations, they cannot be brought under the purview of the Andhra Pradesh Corporation for Outsourced Services.= held that the Circulars and Government Orders issued by the Government, as mentioned above, must be interpreted to mean that the recruitment of outsourced employees for Hindu Temples and Hindu religious institutions cannot be done through APCOS and the rule of reservation in its entirety cannot be applied to recruitment of such outsourced employees. However, the said rule of reservation shall continue to apply even where such recruitment was done through other agencies to the extent of accommodating depressed classes of the society where members of such classes of society profess the Hindu faith.<p>IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI</p><p>***</p><p>W.P.No.6821 of 2021</p><p>Between:</p><p># Syama Prasad Mukherjee Gollapudi</p><p> S/o. Late Radha Krishna Murthy,</p><p> Occ: Advocate, R/o. LIG I H 228,</p><p> APHB Colony, Tadepalligudem-534101</p><p> West Godavari District, A.P.</p><p>… Petitioner</p><p>AND</p><p>$ 1. The State of Andhra Pradesh, rep. by its Secretary, General</p><p> Administration Department, Secretariat, Velagapudi, Amaravathi,</p><p> Guntur District.</p><p> 2. The Commissioner, Endowments Department, A.P., Gollapudi,</p><p> Vijayawada, Krishna District.</p><p> ... Respondents</p><p>Date of Judgment pronounced on : 29-07-2021</p><p>HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO</p><p>1. Whether Reporters of Local newspapers : Yes/No</p><p> May be allowed to see the judgments?</p><p>2. Whether the copies of judgment may be marked : Yes/No</p><p> to Law Reporters/Journals:</p><p>3. Whether the Lordship wishes to see the fair copy : Yes/No</p><p> Of the Judgment? </p><p> RRR,J.</p><p>W.P.No.6281 of 2021</p><p>2</p><p>*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI</p><p>* HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO</p><p>+ W.P.No.6281 of 2021</p><p>%Date: 29.07.2021</p><p>Between:</p><p># Syama Prasad Mukherjee Gollapudi</p><p> S/o. Late Radha Krishna Murthy,</p><p> Occ: Advocate, R/o. LIG I H 228,</p><p> APHB Colony, Tadepalligudem-534101</p><p> West Godavari District, A.P.</p><p>… Petitioner</p><p>AND</p><p>$ 1. The State of Andhra Pradesh, rep. by its Secretary, General</p><p> Administration Department, Secretariat, Velagapudi, Amaravathi,</p><p> Guntur District.</p><p> 2. The Commissioner, Endowments Department, A.P., Gollapudi,</p><p> Vijayawada, Krishna District.</p><p> ... Respondents</p><p>! Counsel for petitioner : Sri V. Venugopala Rao</p><p>^Counsel for Respondents : G.P. for Endowments</p><p><GIST :</p><p>>HEAD NOTE:</p><p>? Cases referred: </p><p> RRR,J.</p><p>W.P.No.6281 of 2021</p><p>3</p><p>HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO</p><p>W.P.No.6281 of 2021</p><p>ORDER:</p><p>The Government of Andhra Pradesh had been framing policy and</p><p>guidelines for recruitment of persons on outsourcing/contract basis from</p><p>time to time. By G.O.Ms.No.126 dated 18.10.2019, the Government</p><p>declared its policy of incorporating a dedicated corporation, which would</p><p>directly outsource manpower to various departments/organizations in the</p><p>State as per their requirement. Thereafter, G.O.Ms.No.136 dated</p><p>04.11.2019 was issued recording the fact that a company named Andhra</p><p>Pradesh Corporation for Outsourced Services (APCOS) had been</p><p>incorporated under Section 8 of the Companies Act, 2013 with the objects</p><p>and purposes set out in the said G.O. The Government, in pursuance of</p><p>the policy announced, earlier, had issued a Circular Memo No.GAD01-</p><p>SUOMISC/31/2019-SU-I, dated 20.11.2019 laying down the following</p><p>guidelines to the said outsourcing corporation. Relevant para of the</p><p>Circular is as follows:</p><p>I) Removal of private outsourcing agencies/middle</p><p>men</p><p>II) Corruption free outsourcing placement</p><p>III) Implementation of 50% reservation for BCs, SCs,</p><p>STs and Minorities, and 50% reservation for</p><p>women</p><p>IV) Timely and full payment of remuneration, without</p><p>any undue cuts</p><p>V) Proper credit of EPF and ESI</p><p>2. Thereafter, the Government of A.P. had again issued circular</p><p>Memo.No.GAD01-SUOMISC/31/2019-SU-I, dated 21.07.2020. The</p><p>guidelines set out in this Circular are in continuation of the guidelines set </p><p> RRR,J.</p><p>W.P.No.6281 of 2021</p><p>4</p><p>out in the earlier Circular dated 20.11.2019. This Circular was to apply to</p><p>the following organizations.</p><p>“All the Secretariat Departments, State Head of</p><p>Departments, PSUs/ Government aided Institutions /</p><p>Organizations / Universities / Societies / Autonomous</p><p>bodies / Semi-autonomous bodies, District level Offices,</p><p>etc., are requested to migrate their outsourced employees</p><p>to the APCOS, by 25-07-2020, duly following guidelines</p><p>issued in the reference (3) cited above.”</p><p>3. After issuance of these Government Orders and Circulars,</p><p>the 2nd respondent issued the impugned Memo No.K3/3676187/2020,</p><p>dated 29.07.2020 directing all the drawing and disbursement officers and</p><p>temple executive authorities to engage manpower and work on</p><p>outsourcing only through the A.P. Corporation for Outsourced Services</p><p>with a stipulation that this should be done strictly in accordance with the</p><p>procedure prescribed in the Circular dated 21.07.2020 without any</p><p>deviation and with immediate effect.</p><p>4. The petitioner, who claims to be a person, who is a strong</p><p>devotee of Tirumala and Dwaraka Tirumala temples, being aggrieved by</p><p>the said Circulars, has filed the present writ petition challenging the</p><p>Circular Memo dated 21.07.2020 of the 2nd respondent.</p><p>5. Sri V. Venugopala Rao, learned counsel appearing for the</p><p>petitioner assails the said Circulars on the following grounds.</p><p>a) The Government Orders and Circulars read together, stipulate</p><p>that the rule of reservation has to be applied in the course of appointment</p><p>of outsourced employees. This would mean that minorities belonging to</p><p>the religions other than Hinduism would have to be mandatorily appointed</p><p>as employees of the Hindu temples. </p><p> RRR,J.</p><p>W.P.No.6281 of 2021</p><p>5</p><p>b) The provisions of Section 29(3) require the executive officers of</p><p>the Hindu temples to be Hindus only. Similarly, a reading of</p><p>Sections 13, 23 and 35 of the Andhra Pradesh Charitable and Hindu</p><p>Religious Institutions and Endowments Act, 1987 (for short ‘the Act’)</p><p>would also show that any person associating with the administration of</p><p>any Hindu temple, at any level, would require to be a Hindu as a nonHindu employee of a temple would not be in consonance with these</p><p>provisions, which require all functions and affairs of the temples to be</p><p>performed strictly in accordance with the Agamas and the practices and</p><p>conventions which have been laid down over a long period of time.</p><p>c) The Andhra Pradesh Charitable and Hindu Religious Institutions</p><p>and Endowments Office Holders and Servants Service Rules, 2000 issued</p><p>by way of G.O.Ms.No.888, Revenue (Endowments.I) dated 08.12.2000</p><p>stipulates, in Rule-3, that every office holder and servant of a religious</p><p>institution or endowment shall be a person professing the Hindu religion</p><p>and shall cease to hold the office when the person ceases to profess</p><p>Hindu religion.</p><p>6. Article 16(5) of the Constitution of India also provides that</p><p>while reservation can be made for certain sections of society, in relation to</p><p>public employment, the said provisions shall not affect the operation of</p><p>any law which provides that the incumbent of an office, in connection with</p><p>the affairs of any religious or denominational institution, should be a</p><p>person professing a particular religion or belonging to a particular</p><p>denomination.</p><p>7. A combined reading of these provisions would show that</p><p>application of reservation whereby the persons belonging to other</p><p>religions would have to be appointed as the office holders or servants of </p><p> RRR,J.</p><p>W.P.No.6281 of 2021</p><p>6</p><p>the Hindu temples, is not permissible and even the framers of the</p><p>Constitution had considered this aspect and provided that the said</p><p>institutions would be exempted from the general rule of reservation.</p><p>8. The provisions of the Circulars and the Government Orders</p><p>are to the effect that the outsourcing employees, who are being appointed</p><p>to the Government organizations including the societies and autonomous</p><p>bodies would have to utilize the services of the outsourcing company and</p><p>also implement the rule of reservation in its entirety. This would not be</p><p>applicable to temples inasmuch as the said temples are not Government</p><p>organizations and at best the role of Government is that of a trustee of</p><p>the temples at the very best, and that of an appointing agency of such</p><p>trustees at the very least. In such circumstances, these Circulars and</p><p>Government Orders cannot apply to the outsourcing of employees by</p><p>temples and other religious institutions.</p><p>9. The 2nd respondent has filed a counter affidavit and the</p><p>learned Government pleader while reiterating the said averments in the</p><p>counter affidavit, submits that the writ petition is being filed on the</p><p>misplaced apprehension of the petitioner that the members of other</p><p>religions would be taken into the service of the Hindu religious</p><p>institutions. She submits that while the rule of reservation would be</p><p>applied, the same would be restricted only to the members of the Hindu</p><p>religion and the persons professing the other religion would not be</p><p>included in the rule of reservation. She further submits that the</p><p>apprehension raised by the petitioners in the writ petition that existing</p><p>outsourced employees would have to be retrenched or removed from</p><p>service is also misplaced as the exercise under the Circulars and the </p><p> RRR,J.</p><p>W.P.No.6281 of 2021</p><p>7</p><p>Government Orders is to migrate all the existing outsourced employees</p><p>from private outsourcing agencies to the Government agency.</p><p>Consideration of the Court:</p><p>10. A reading of the Circulars and the Rules reveal that the</p><p>policy of the Government is, firstly, to bring all the outsourcing employees</p><p>engaged by the Government and organizations of the Government under</p><p>the control of one Corporation and consequently to ensure that the rule of</p><p>reservation in its entirety is applied wherever such outsourced employees</p><p>are being engaged by the Government or Governmental organizations.</p><p>The impugned Circular issued by the 2nd respondent is merely reiterating</p><p>and reaffirming the said policy and intention of the Government.</p><p>11. In view of the provisions of Sections 13, 23, 29 (3) and 35 of</p><p>the Act and Rule 3 of the A.P. Charitable and Hindu Religious Institutions</p><p>and Endowments Office Holders and Servants Service Rules, 2000, the</p><p>employment of any person not professing the Hindu religion is prohibited</p><p>in any temple or religious institution. Under the rule of reservation, certain</p><p>sections of Hindus, upon conversion to another religion fall within the</p><p>category B-C and the category BC-E is reserved for the members of</p><p>another non-Hindu religion. The application of the rule of reservation in its</p><p>entirety would result in appointment of persons who profess religions</p><p>other than Hinduism to be brought in as employees/servants of temples in</p><p>Hindu Religious Institutions.</p><p>12. Article 16 of the Constitution of India is an enabling</p><p>provision for providing reservations for classes of persons, who have been</p><p>deprived of adequate reservation in the services of the State. However,</p><p>while enabling such progressive reservation, Article 16 (5) also caters to </p><p> RRR,J.</p><p>W.P.No.6281 of 2021</p><p>8</p><p>the sentiments and beliefs relating to the persons following particular</p><p>religions and provides that nothing in Article 16 would affect the operation</p><p>of any law, which protects such beliefs and faith of persons following any</p><p>particular religion. This provision is not necessarily restricted to the</p><p>persons following the Hindu religion but is also applicable to any other</p><p>religion.</p><p>13. In the circumstances, in view of the conflict between the</p><p>provisions of the Endowments Act and the Rules as mentioned above and</p><p>the requirements of the rule of reservation, it would have to be held that</p><p>the rule of reservation in its entirety cannot be applied to religious</p><p>institutions or temples.</p><p>14. Coming to the second argument of Sri V. Venugopal Rao,</p><p>learned counsel for the petitioner, it must be remembered that the</p><p>temples and Hindu religious institutions are not Government</p><p>organizations. They are institutions set up on account of the belief and</p><p>faith of the persons professing the Hindu religion. They have nothing to</p><p>do with the secular functions of the State and are purely religious</p><p>organizations. The role of the State in such organizations, as provided</p><p>under the Endowments Act, 1987, is restricted to ensure that the secular</p><p>affairs of the temples and religious institutions are maintained properly.</p><p>This role of the State, which extends to the appointment of trustees and</p><p>supervision of the secular affairs of the institutions under the Endowments</p><p>Act, will not extend to a stage where the temples and Hindu religious</p><p>institutions become part of the State. Temples and other Hindu religious</p><p>establishments are neither Government nor organizations of the</p><p>Government for the purpose of the applicability of the aforesaid</p><p>Government Orders or Circulars. </p><p> RRR,J.</p><p>W.P.No.6281 of 2021</p><p>9</p><p>15. As the Circulars and Government Orders relate to</p><p>outsourcing employees in the Government organizations, and the temples</p><p>and the Hindu religious institutions are not Government organizations,</p><p>they cannot be brought under the purview of the Andhra Pradesh</p><p>Corporation for Outsourced Services.</p><p>16. For all the aforesaid reasons, it must be held that the</p><p>Circulars and Government Orders issued by the Government, as</p><p>mentioned above, must be interpreted to mean that the recruitment of</p><p>outsourced employees for Hindu Temples and Hindu religious institutions</p><p>cannot be done through APCOS and the rule of reservation in its entirety</p><p>cannot be applied to recruitment of such outsourced employees. However,</p><p>the said rule of reservation shall continue to apply even where such</p><p>recruitment was done through other agencies to the extent of</p><p>accommodating depressed classes of the society where members of such</p><p>classes of society profess the Hindu faith.</p><p>17. Accordingly the writ petition is allowed and the impugned</p><p>Circular Memo No.K3/3676187/2020, dated 29.07.2020 is set aside. There</p><p>shall be no order as to costs. As a sequel, pending miscellaneous</p><p>petitions, if any, shall stand closed.</p><p> ________________________</p><p>R. RAGHUNANDAN RAO, J</p><p>29th July, 2021</p><p>Js </p><p> RRR,J.</p><p>W.P.No.6281 of 2021</p><p>10</p><p>HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO</p><p>W.P.Nos.6281 of 2021</p><p>29th July, 2021</p><p>Js </p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-76134234038324559672021-08-02T06:41:00.001+05:302021-08-02T06:41:07.591+05:30right of an accused to have his bail application heard by the Court within a reasonable time has been entrenched as a constitutional liberty. At the same time, disposal of bail application without furnishing the order copy within a reasonable time will not place the accused in a better position. Mere emphasizing that an accused has an indefeasible fundamental right to bail itself is not sufficient without furnishing the copy of the order. -GUIDE LINES ISSUED <p><br /></p><p>Hence, this Court feels that an alternative mechanism
shall be evolved to address the plight of these undertrial
prisoners/accused. Recently, the Hon’ble Apex Court has also
taken a serious note of this issue. </p><p>9. Protection of personal liberty of an individual is
undeniably a constitutional duty of this Court. Our criminal
justice system always gives paramount consideration to the
protection of the rights of the accused. Article 21 of the
Constitution of India mandates that the personal liberty of an
accused can be curtailed only after strict compliance with the
procedure established by law. Sections 438 and 439 of Cr.P.C.
ensures that the accused is not deprived of his personal liberty
arbitrarily. The Hon’ble Apex Court in catena of cases has held
that speedy adjudication process is one of the main facets that
4
constitute the essence of access to justice and without it, access
to justice as a constitutional value will be a mere illusion.
Denial of this right undermines public confidence in the justice
delivery system. It is also settled law that the right of an
accused to have his bail application heard by the Court within a
reasonable time has been entrenched as a constitutional
liberty. At the same time, disposal of bail application without
furnishing the order copy within a reasonable time will not place
the accused in a better position. Mere emphasizing that an
accused has an indefeasible fundamental right to bail itself is
not sufficient without furnishing the copy of the order. </p><p>10. This is high time the Courts shall address these issues
with a progressive approach by adopting the innovative
methods. Recently Andhra Pradesh High Court implemented a
procedure whereby the concerned Court Masters are uploading
the daily proceedings / orders / judgments on the same day.
This Court deems it appropriate to issue the following
guidelines. </p><p>(a) Parties/Advocates shall download the order copy from
the High Court’s Website along with case details which
are available in the case status information. </p><p>(b) While filing the memo on behalf of accused for furnishing
sureties, the Advocate shall State in the memo that
he/she has downloaded the order copy from the High
Court’s Website. The concerned Administrative Officer /
Chief Ministerial Officer of the Court shall verify the
order from the High Court’s Website and make an
5
endorsement to that effect and then shall place the same
before the Court. </p><p>(c) The Public Prosecutor shall also obtain necessary
instructions in this regard and assist the Court. </p><p>(d) The Presiding Officer on the same day shall dispose of
the same and dispatch the release order to the
concerned jail authorities forthwith through email or any
other electronic mode. </p><p>(e) In cases of anticipatory bail, the burden to verify the
authenticity of the copy is on the concerned Station
House Officer and if necessary, he should obtain
necessary instructions from the Public Prosecutor’s
Office and complete the process on the same day
expeditiously as per law. </p><p>(f) Registrar (Judicial) shall communicate copy of this order
to </p><p>(1) The Principal Secretary for Home Affairs, Andhra
Pradesh; </p><p>(2) The Director General of Police, Andhra
Pradesh; </p><p>(3) The Director of Prosecution, who in turn
shall sensitize the Police Officers / Station House
Officers / Public Prosecutors and ensure implementation
of this order. </p><p>(g) Registrar (Judicial) shall communicate copy of this order
to all the Principal District Judges in the State, who in
turn shall sensitize all the Presiding Officers and ensure
implementation of this order. </p><p>(h) Registrar (Judicial) is further directed to circulate the
copy of this order to all the Bar Associations in the State
through the Principal District Judges, so that they can
effectively address their clients’ cause. </p><p>(i) Registrar (Judicial) shall also issue a separate
notification in this regard and the same shall be
displayed in the High Court’s Website. </p><p>11. This order shall come into force from 26.07.2021. </p><p>12. The Judicial Officers in the State shall bring to the notice
of the Registrar (Judicial), the issues / hitches, if any, in
implementing the directions of this Court. In case of
anticipatory bails, the Police Officials shall bring to the notice of
the Public Prosecutor, High Court about their difficulties in
implementing the orders of this Court and the Registrar
(Judicial) and learned Public Prosecutor shall place the same
before this Court by the next date of hearing i.e. 31.08.2021. </p><p>13. These directions will be in force until further orders or
suitable Rules are framed in this regard. It is needless to
mention, if any clarification or modification is required for
effective implementation, they will be examined accordingly on
the next date of hearing.</p><p>14. In spite of all odds, determined efforts are required for
achieving the goal. Ways and means have to be found out by
constant thinking and monitoring. It is the responsibility of all
the stakeholders to uphold the public confidence in the justice
delivery system by giving timely justice which includes
furnishing the copies of orders/judgments. </p><p>15. Post on 31.08.2021. </p><p>AP HIGH COURT</p><p>THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI</p><p>CRIMINAL PETITION NO.3933 of 2021</p><p><span style="background-color: white; font-family: Arial, Helvetica, sans-serif; font-size: 13.2px;">Korra Bhaskara Rao</span></p><span style="background-color: white; font-family: Arial, Helvetica, sans-serif; font-size: 13.2px;">Versus</span><br style="background-color: white; font-family: Arial, Helvetica, sans-serif; font-size: 13.2px;" /><p><span style="background-color: white; font-family: Arial, Helvetica, sans-serif; font-size: 13.2px;">The State of Andhra Pradesh</span></p><p>ORDER:-</p><p> This petition is filed under Sections 437 and 439 of Code</p><p>of the Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking</p><p>regular bail to the petitioner/ A-2 in connection with Crime</p><p>No.38 of 2020 of Mothugudem Police Station, East Godavari</p><p>District for the offence punishable under Section Section</p><p>20(b)(ii)(C) r/w Section8 (c) of the Narcotic Drugs and</p><p>Psychotropic Substances Act, 1985 (for brevity “NDPS Act”).</p><p>2. The case of prosecution is that on 03.09.2020 on credible</p><p>information about illegal transportation of ganja, the respondent</p><p>Police rushed to Daralamma Temple, outskirts of Polluru village</p><p>of Chinturu Mandal and while conducting vehicle check at</p><p>about 11.00 AM, they found a Bolero pick-up van bearing</p><p>registration No.AP 24 TB 1550 coming from Donkarai</p><p>proceeding towards Lakkavaram Junction. On seeing the police,</p><p>the inmates of the said Bolero van tried to escape from the spot,</p><p>but the police apprehended them and on search, they found 300</p><p>KGs of ganja. The police seized the contraband, registered the</p><p>crime, arrested the petitioner and remanded him to judicial</p><p>custody on the same day.</p><p>3. Heard Sri G.Venkata Reddy, learned counsel for the</p><p>petitioner and the learned Public Prosecutor for the respondentState. </p><p>2</p><p>4. Learned counsel for the petitioner/A-2 submits that the</p><p>petitioner has nothing to do with the alleged offence and in fact,</p><p>the petitioner was engaged by A-1 on payment of Rs.15,000/-</p><p>who accompanied him. Further the officer who acted as a</p><p>gazetted officer while conducting the search and seizure is a</p><p>veterinary doctor and the said doctor is not a competent person</p><p>to act as a gazetted officer under Sections 42, 43 and 50 of the</p><p>NDPS Act. Learned counsel for the petitioner further submits</p><p>that the entire investigation is completed and the petitioner is</p><p>languishing in jail from 03.09.2020.</p><p>5. On the other hand, the learned Additional Public</p><p>Prosecutor submits that on 13.10.2020 charge sheet was filed.</p><p>6. Taking into consideration the fact that the entire</p><p>investigation is completed and charge sheet is filed and further</p><p>the petitioner is languishing in jail from 03.09.2020, this Court</p><p>deems it appropriate to grant bail to the petitioner. However, on</p><p>certain conditions.</p><p>7. Accordingly, the petitioner/ A-2 shall be enlarged on bail</p><p>on execution of self bond for Rs.2,00,000/- (Rupees two lakhs</p><p>only) with two sureties for a like sum each to the satisfaction of</p><p>the Court of the Additional Judicial First Class Magistrate,</p><p>Rampachodavaram. On such release, the petitioner shall appear </p><p>3</p><p>before the Station House Officer, Mothugudem Police Station,</p><p>East Godavari District, once in a month till completion of trial.</p><p>8. This Court having criminal roster from the last couple of</p><p>months has noticed that in spite of best efforts by the Registry,</p><p>there is significant delay in issuing the certified copies of the</p><p>orders. This Court is conscious of the large number of cases</p><p>pending before the Court, due to dearth of staff, it is difficult to</p><p>issue the order copies within a short span of time. In cases,</p><p>where the accused are entitled for statutory bail as they are</p><p>languishing in jail for more than 60, 90 and 180 days, when</p><p>default bail is granted, it was brought to the notice of the Court</p><p>that there was considerable delay in dispatching the copy of</p><p>orders. Hence, this Court feels that an alternative mechanism</p><p>shall be evolved to address the plight of these undertrial</p><p>prisoners/accused. Recently, the Hon’ble Apex Court has also</p><p>taken a serious note of this issue.</p><p>9. Protection of personal liberty of an individual is</p><p>undeniably a constitutional duty of this Court. Our criminal</p><p>justice system always gives paramount consideration to the</p><p>protection of the rights of the accused. Article 21 of the</p><p>Constitution of India mandates that the personal liberty of an</p><p>accused can be curtailed only after strict compliance with the</p><p>procedure established by law. Sections 438 and 439 of Cr.P.C.</p><p>ensures that the accused is not deprived of his personal liberty</p><p>arbitrarily. The Hon’ble Apex Court in catena of cases has held</p><p>that speedy adjudication process is one of the main facets that </p><p>4</p><p>constitute the essence of access to justice and without it, access</p><p>to justice as a constitutional value will be a mere illusion.</p><p>Denial of this right undermines public confidence in the justice</p><p>delivery system. It is also settled law that the right of an</p><p>accused to have his bail application heard by the Court within a</p><p>reasonable time has been entrenched as a constitutional</p><p>liberty. At the same time, disposal of bail application without</p><p>furnishing the order copy within a reasonable time will not place</p><p>the accused in a better position. Mere emphasizing that an</p><p>accused has an indefeasible fundamental right to bail itself is</p><p>not sufficient without furnishing the copy of the order.</p><p>10. This is high time the Courts shall address these issues</p><p>with a progressive approach by adopting the innovative</p><p>methods. Recently Andhra Pradesh High Court implemented a</p><p>procedure whereby the concerned Court Masters are uploading</p><p>the daily proceedings / orders / judgments on the same day.</p><p>This Court deems it appropriate to issue the following</p><p>guidelines.</p><p>(a) Parties/Advocates shall download the order copy from</p><p>the High Court’s Website along with case details which</p><p>are available in the case status information.</p><p>(b) While filing the memo on behalf of accused for furnishing</p><p>sureties, the Advocate shall State in the memo that</p><p>he/she has downloaded the order copy from the High</p><p>Court’s Website. The concerned Administrative Officer /</p><p>Chief Ministerial Officer of the Court shall verify the</p><p>order from the High Court’s Website and make an </p><p>5</p><p>endorsement to that effect and then shall place the same</p><p>before the Court.</p><p>(c) The Public Prosecutor shall also obtain necessary</p><p>instructions in this regard and assist the Court.</p><p>(d) The Presiding Officer on the same day shall dispose of</p><p>the same and dispatch the release order to the</p><p>concerned jail authorities forthwith through email or any</p><p>other electronic mode.</p><p>(e) In cases of anticipatory bail, the burden to verify the</p><p>authenticity of the copy is on the concerned Station</p><p>House Officer and if necessary, he should obtain</p><p>necessary instructions from the Public Prosecutor’s</p><p>Office and complete the process on the same day</p><p>expeditiously as per law.</p><p>(f) Registrar (Judicial) shall communicate copy of this order</p><p>to (1) The Principal Secretary for Home Affairs, Andhra</p><p>Pradesh; (2) The Director General of Police, Andhra</p><p>Pradesh; (3) The Director of Prosecution, who in turn</p><p>shall sensitize the Police Officers / Station House</p><p>Officers / Public Prosecutors and ensure implementation</p><p>of this order.</p><p>(g) Registrar (Judicial) shall communicate copy of this order</p><p>to all the Principal District Judges in the State, who in</p><p>turn shall sensitize all the Presiding Officers and ensure</p><p>implementation of this order.</p><p>(h) Registrar (Judicial) is further directed to circulate the</p><p>copy of this order to all the Bar Associations in the State</p><p>through the Principal District Judges, so that they can</p><p>effectively address their clients’ cause.</p><p>(i) Registrar (Judicial) shall also issue a separate</p><p>notification in this regard and the same shall be</p><p>displayed in the High Court’s Website. </p><p>6</p><p><br /></p><p>11. This order shall come into force from 26.07.2021.</p><p>12. The Judicial Officers in the State shall bring to the notice</p><p>of the Registrar (Judicial), the issues / hitches, if any, in</p><p>implementing the directions of this Court. In case of</p><p>anticipatory bails, the Police Officials shall bring to the notice of</p><p>the Public Prosecutor, High Court about their difficulties in</p><p>implementing the orders of this Court and the Registrar</p><p>(Judicial) and learned Public Prosecutor shall place the same</p><p>before this Court by the next date of hearing i.e. 31.08.2021.</p><p>13. These directions will be in force until further orders or</p><p>suitable Rules are framed in this regard. It is needless to</p><p>mention, if any clarification or modification is required for</p><p>effective implementation, they will be examined accordingly on</p><p>the next date of hearing.</p><p>14. In spite of all odds, determined efforts are required for</p><p>achieving the goal. Ways and means have to be found out by</p><p>constant thinking and monitoring. It is the responsibility of all</p><p>the stakeholders to uphold the public confidence in the justice</p><p>delivery system by giving timely justice which includes</p><p>furnishing the copies of orders/judgments.</p><p>15. Post on 31.08.2021.</p><p> ___________________________</p><p> LALITHA KANNEGANTI, J</p><p>22nd July, 2021</p><p>PVD </p><p>7</p><p>THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI</p><p>CRIMINAL PETITION No.3933 of 2021</p><p>22nd July, 2021</p><p>PVD </p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-91521720854602843912021-07-23T19:53:00.001+05:302021-07-23T19:53:05.661+05:30freedom of voting is a part of the freedom of expression. It is further observed that secrecy of casting vote is necessary for strengthening democracy. It is further observed that in direct elections of Lok Sabha or State Legislature, maintenance of secrecy is a must and is insisted upon all over the world in democracies where direct elections are involved to ensure that a voter casts his vote without any fear or being victimised if his vote is disclosed. It is further observed that democracy and free elections are a part of the basic structure of the Constitution. It is also further observed that the election is a mechanism which ultimately represents the will of the people. The essence of the electoral system should be to ensure freedom of voters to exercise their free choice. Therefore, any attempt of booth capturing and/or bogus voting should be dealt with iron hands because it ultimately affects the rule of law and democracy. Nobody can be permitted to dilute the right to free and fair election.<p>Sections 323 and 147 IPC -In view of the above, we are of the firm view that the appellants are
rightly convicted under Sections 323 and 147 IPC and sentenced to
undergo six months simple imprisonment only for the said offences.
23
Before parting, we may observe that though in the present case it
has been established and proved that all the accused were the members
of the unlawful assembly in prosecution of the common object, namely,
“to snatch the voters list and to cast bogus voting” and have been
convicted for the offence under Section 147 IPC, the trial Court has
imposed the sentence of only six months simple imprisonment. In the
case of People”s Union for Civil Liberties (supra), it is observed by this
Court that freedom of voting is a part of the freedom of expression. It is
further observed that secrecy of casting vote is necessary for
strengthening democracy. It is further observed that in direct elections of
Lok Sabha or State Legislature, maintenance of secrecy is a must and is
insisted upon all over the world in democracies where direct elections
are involved to ensure that a voter casts his vote without any fear or
being victimised if his vote is disclosed. It is further observed that
democracy and free elections are a part of the basic structure of the
Constitution. It is also further observed that the election is a mechanism
which ultimately represents the will of the people. The essence of the
electoral system should be to ensure freedom of voters to exercise their
free choice. Therefore, any attempt of booth capturing and/or bogus
voting should be dealt with iron hands because it ultimately affects the
rule of law and democracy. Nobody can be permitted to dilute the right
to free and fair election. However, as the State has not preferred any
24
appeal against imposing of only six months simple imprisonment, we
rest the matter there.</p><p><br /></p><p>REPORTABLE</p><p>IN THE SUPREME COURT OF INDIA</p><p>CRIMINAL APPELLATE JURISDICTION</p><p>CRIMINAL APPEAL NO. 606 OF 2021</p><p>Lakshman Singh …Appellant</p><p>Versus</p><p>State of Bihar (now Jharkhand) …Respondent</p><p>WITH</p><p>CRIMINAL APPEAL NOS. 630-631 OF 2021</p><p>Shiv Kumar Singh & Others Etc. ...Appellants</p><p>Versus</p><p>State of Bihar (now Jharkhand) ...Respondent</p><p>J U D G M E N T</p><p>M.R. SHAH, J.</p><p>1. Feeling aggrieved and dissatisfied with the impugned common</p><p>judgment and order dated 31.10.2018 passed by the High Court of</p><p>1</p><p>Jharkhand at Ranchi in Criminal Appeal Nos. 232/1999 and 242/1999,</p><p>by which the High Court has dismissed the said appeals preferred by the</p><p>appellants herein and has confirmed the judgment and order of</p><p>conviction and sentence passed by the learned trial Court convicting the</p><p>appellants for the offences under Sections 323 and 147 IPC and</p><p>sentencing them to undergo six months simple imprisonment under both</p><p>sections, original accused nos. 9, 8, 12, 11, 10, 14, 2 and 13 –</p><p>Lakshman Singh, Shiv Kumar Singh, Upendra Singh, Vijay Singh,</p><p>Sanjay Prasad Singh, Rajmani Singh, Ayodhya Prasad Singh and</p><p>Ramadhar Singh have preferred the present appeals.</p><p>2. As per the case of the prosecution, an FIR was lodged at Paatan</p><p>Police Station by the first informant – Rajeev Ranjan Tiwari on</p><p>26.11.1989 alleging inter alia that on the eve of general election, he was</p><p>working as a worker of Bhartiya Janta Party at village Golhana Booth</p><p>No. 132 under Paatan Police Station and was issuing slips to the voters</p><p>towards two hundred yards north away from the polling booth; at that</p><p>time, at around 10:40 a.m., the accused persons who belong to another</p><p>village Naudiha came armed with lathis, sticks, country made pistols and</p><p>asked him to stop issuing voter slips and handover the voters list which</p><p>he was possessing and on his refusal the accused persons started</p><p>physically beating him (PW8 – Rajiv Ranjan Tiwari) with hands, fists,</p><p>2</p><p>lathis and sticks; the brother of the first informant-PW8, Priya Ranjan</p><p>Tiwari (PW10) upon knowing about the incident came to rescue him and</p><p>at that time accused Dinanath Singh @ Dina Singh fired gun shot at</p><p>PW10 with his country made pistol, due to which he received pellet</p><p>injuries. Accused Ajay Singh fired at Dinesh Tiwari (PW12), due to which</p><p>he was injured. It was further alleged that due to scuffle, accused Hira</p><p>Singh snatched wrist watches of PW8 & PW10; the villagers rushed</p><p>there and then all the accused persons ran away towards village</p><p>Naudhia. Based on the statement of PW8 – Rajiv Ranjan Tiwari, which</p><p>was recorded at 12:30 p.m. on 26.11.1989, an FIR was registered at</p><p>about 2:00 p.m. on the very day, i.e., 26.11.1989 against 16 accused</p><p>named persons for the offences under Sections 147, 148, 149, 307, 326,</p><p>324, 323 IPC and Section 27 of the Arms Act. At this stage, it is required</p><p>to be noted that even some of the accused – Lakshman Singh, Shiv</p><p>Kumar Singh and Ayodhya Prasad Singh also sustained injuries. After</p><p>conclusion of the investigation, the investigating officer filed chargesheet</p><p>against 15 accused including the appellants herein.</p><p>2.1 The learned trial Court framed the charge against the accused</p><p>persons for the offences under Sections 323, 307, 147, 149 and 379</p><p>IPC. Accused Dinanath Singh and Ajay Singh were further charged</p><p>under Sections 148 IPC and accused Hira Singh was also charged</p><p>3</p><p>under Section 379 IPC. As the case was exclusively triable by the Court</p><p>of Sessions, the case was committed to the learned Sessions Court,</p><p>which was numbered as Sessions Trial No. 36 of 1991.</p><p>2.2 To prove the case against the accused, the prosecution examined</p><p>in all 15 witnesses including PW8, the first informant – Rajiv Ranjan</p><p>Tiwari, Priya Ranjan Tiwari (PW10) the brother of the first informant and</p><p>PW5 – Dilip Kumar Tiwari, who all were injured eye witnesses. The</p><p>prosecution also examined Dr. Jawahar Lal (PW7), who examined</p><p>PW10, PW12 and PW5 on the very day at Sadar Hospital, Daltonganj</p><p>and who found injuries on the said persons. The prosecution also</p><p>examined the investigating officer – Shivnandan Mahto (PW13).</p><p>Prosecution also examined independent witnesses, i.e., PW1, PW3 &</p><p>PW4. After closure of the evidence on behalf of the prosecution,</p><p>statements of the accused persons under Section 313 Cr.P.C. were</p><p>recorded. They denied to the allegations. The defence also examined</p><p>DW1 to prove the injuries on accused Ayodhya Prasad Singh, Rama</p><p>Singh, Shiv Kumar Singh and Lakshman Singh and brought on record</p><p>their injury reports.</p><p>2.3 Thereafter, on conclusion of the full-fledged trial and on</p><p>appreciation of the entire evidence on record and relying upon the</p><p>deposition of PW8, PW10 & PW5, who all were injured eyewitnesses</p><p>4</p><p>and other eyewitnesses, the learned trial Court convicted the appellants</p><p>herein for the offences under Sections 323 and 147 IPC and sentenced</p><p>them to undergo six months simple imprisonment for both the offences.</p><p>The learned trial Court also convicted accused Dinanath Singh for the</p><p>offences under Sections 326 & 148 IPC and sentenced him to undergo</p><p>seven years and two years RI respectively. The learned trial Court also</p><p>convicted accused Ajay Singh for the offences under Sections 324 & 148</p><p>IPC and sentenced him to undergo three years & two years RI</p><p>respectively.</p><p>2.4 Feeling aggrieved and dissatisfied with the judgment and order of</p><p>conviction and sentence, convicting and sentencing the appellants</p><p>herein, original accused nos. 9, 8, 12, 11, 10, 14, 2 preferred appeal</p><p>along with other accused being Criminal Appeal No.232 of 1999 and</p><p>accused no. 13 preferred appeal being Criminal Appeal No. 242 of 1999</p><p>before the High Court. By the common impugned judgment and order,</p><p>the High Court has dismissed the said appeals and has confirmed the</p><p>judgment and order of conviction and sentence passed by the learned</p><p>trial Court.</p><p>2.5 Feeling aggrieved and dissatisfied with the impugned common</p><p>judgment and order passed by the High Court, original accused nos. 9,</p><p>8, 12, 11, 10, 14, 2 & 13 have preferred the present appeals.</p><p>5</p><p>3. Shri Manoj Swarup, learned Senior Advocate has appeared on</p><p>behalf of the appellants – accused and Shri Arunabh Chowdhury,</p><p>learned Additional Advocate General in Criminal Appeal No. 606/2021</p><p>and Shri Tapesh Kumar Singh, learned Advocate in Criminal Appeal Nos.</p><p>630-631/2021 have appeared for the State of Jharkhand.</p><p>3.1 Learned Senior Advocate appearing on behalf of the appellants –</p><p>accused has vehemently submitted that in the facts and circumstances</p><p>of the case both, the learned trial Court as well as the High Court have</p><p>committed a grave error in convicting the accused for the offences under</p><p>Sections 323, 147 IPC.</p><p>3.2 It is further submitted that both the courts below have materially</p><p>erred in relying upon the deposition of PW8, PW10 & PW5. It is</p><p>submitted that the aforesaid witnesses are unreliable and untrustworthy.</p><p>It is submitted that they are not the independent witnesses. It is</p><p>submitted that as such PW12 – Dinesh Tiwary turned hostile. It is</p><p>submitted that the aforesaid witnesses belong to the same village.</p><p>3.3 It is further submitted that even both the courts below have</p><p>materially erred in coming to the conclusion that the appellants were part</p><p>of the unlawful assembly and thereby have committed a grave error in</p><p>convicting the accused for the offence under Section 147 IPC.</p><p>6</p><p>3.4 It is further submitted that the motive has not been established and</p><p>proved. It is submitted that the common object was alleged to be to cast</p><p>bogus votes, which was never cast. It is submitted that even the voter</p><p>slip was also available with all other parties and therefore the motive as</p><p>per the prosecution case is questionable.</p><p>3.5 It is further submitted that so far as the impugned judgment and</p><p>order passed by the High Court is concerned, the individual role and/or</p><p>the merits of the case qua the respective appellants – accused have not</p><p>at all been considered by the High Court. It is submitted that the High</p><p>Court has only stated at page 26, para 23 qua the present appellants</p><p>that so far as the rests of the appellants are concerned, they have been</p><p>rightly held guilty under Sections 323 & 147 IPC. It is submitted that</p><p>there is no independent assessment of the evidence qua the appellants</p><p>herein.</p><p>3.6 It is further submitted that both the courts below have not properly</p><p>appreciated the fact that the presence of the accused at the polling</p><p>station was natural. It is submitted that because of the bye-election, the</p><p>accused persons along with the other persons belonging to different</p><p>political parties were present. It is submitted that it was natural for the</p><p>people belonging to different parties to call persons from different</p><p>7</p><p>villages or otherwise to be present at booth and that itself would not be</p><p>sufficient to prove the guilt.</p><p>3.7 It is further submitted that even otherwise, the courts below have</p><p>materially erred in convicting the accused for the offence under Section</p><p>323 IPC. It is submitted that so far as PW8 – informant is concerned,</p><p>there was no injury sustained by him. It is submitted that no injury</p><p>certificate of PW8 has been brought on record. It is submitted that the</p><p>prosecution has brought on record the injury certificates of three persons</p><p>only, namely, PW10 -Priya Ranjan Tiwari, PW12 – Dinesh Tiwari and</p><p>PW5 – Dilip Tiwari. It is submitted that all the injuries are by gunshot</p><p>except two simple injuries caused to Dinesh Tiwari – PW12. It is</p><p>submitted that PW12 turned hostile. It is submitted that the appellants</p><p>are alleged to have used lathis and sticks only against the first informant</p><p>– PW8 as per the prosecution case. It is submitted that therefore in the</p><p>absence of any corroborating evidence/material in support of the case of</p><p>the prosecution that the appellants have beaten PW8 and sustained</p><p>injuries, the courts below have materially erred in convicting the accused</p><p>for the offence under Section 323 IPC.</p><p>3.8 It is further submitted that even the conduct on the part of the first</p><p>informant – PW8 creates doubt about his credibility. It is submitted that</p><p>he has roped in several persons belonging to the opposite camp. It is</p><p>8</p><p>submitted that after the incident he went to the village and the police</p><p>SHO came to his house and taken him to the government hospital,</p><p>Patan and thereafter recorded his fardbyan (statement). It is submitted</p><p>that neither he went to his injured brother nor he has ever gone to see</p><p>him at the hospital nor any family member went to see the injured in the</p><p>hospital. It is submitted that in such circumstances, PW8 is not a reliable</p><p>and trustworthy witness and therefore the courts below ought not to have</p><p>relied upon the deposition of PW8.</p><p>3.9 It is further submitted that even there is no recovery of lathis and</p><p>sticks. It is submitted that even the voting slips have also not been</p><p>recovered from the informant. It is submitted that non-exhibit of voter</p><p>slips demolishes the case of the prosecution. It is submitted that FIR,</p><p>PW1 and informant and consistently all witnesses have stated that Rajiv</p><p>Ranjan Tiwari refused to give voter slips to the accused, upon which</p><p>scuffle occurred. It is submitted that the voting slips are not exhibited. It</p><p>is submitted therefore uncorroborated testimony of asking voter slips is</p><p>not proved.</p><p>3.10 Making the above submissions and relying upon the decisions of</p><p>this Court in the cases of Kutumbaka Krishna Mohan Rao v. Public</p><p>Prosecutor, High Court of A.P., reported in 1991 Supp. 2 SCC 509 and</p><p>9</p><p>Inder Singh v. State of Rajasthan, reported in (2015) 2 SCC 734, it is</p><p>prayed to allow the present appeals.</p><p>4. The present appeals are opposed by the learned counsel</p><p>appearing on behalf of the State of Jharkhand.</p><p>4.1 It is submitted that as such there are concurrent findings of fact</p><p>recorded by both, the learned trial Court as well as the High Court,</p><p>holding the appellants guilty for the offences under Sections 323 & 147</p><p>IPC.</p><p>4.2 It is submitted that in the present case the prosecution has been</p><p>successful in proving the case against the accused by examining PW8,</p><p>PW10 & PW5, who are the injured eyewitnesses. It is submitted that the</p><p>injured eyewitnesses – PW8, PW10 & PW5 are reliable and trustworthy.</p><p>It is submitted that all the aforesaid three witnesses were thoroughly</p><p>cross-examined and from cross-examination, nothing adverse to the</p><p>case of the prosecution has been brought on record by the accused. It is</p><p>submitted that even the prosecution examined thee other witnesses,</p><p>PW1, PW3 & PW4 who are independent witnesses, who supported the</p><p>case of the prosecution. It is submitted that as such the learned trial</p><p>Court has discussed the entire evidence on record and analysed the</p><p>injury reports and thereafter by a detailed judgment has convicted the</p><p>appellants for the offence of voluntarily causing hurt under Section 323</p><p>10</p><p>IPC and for the offence of rioting under Section 147 IPC. It is submitted</p><p>that all the appellants have been guilty for the offence of rioting</p><p>punishable under Section 147 IPC. It is submitted that for the offence of</p><p>rioting, there has to be,</p><p>i) an unlawful assembly of 5 or more persons as defined in</p><p>Section 141 IPC, i.e., an assembly of 5 or more persons and such</p><p>assembly was unlawful;</p><p>ii) the unlawful assembly must use force or violence. Force is</p><p>defined in Section 349 IPC; and</p><p>iii) the force or violence used by an unlawful assembly or by any</p><p>member thereof must be in prosecution of the common object of</p><p>such assembly in which case every member of such assembly is</p><p>guilty of the offence of rioting.</p><p>It is submitted that in the present case, all the ingredients of rioting</p><p>as defined under Section 146 of the IPC has been established and</p><p>proved.</p><p>4.3 It is submitted that as held by this Court in the case of Mahadev</p><p>Sharma v. State of Bihar, (1966) 1 SCR 18 = AIR 1966 SC 302, ‘that</p><p>every member of the unlawful assembly is guilty of the offence of rioting</p><p>even though he may not have himself used force or violence’. It is</p><p>submitted that as held by this Court, ‘offence of rioting under Section 146</p><p>IPC is said to be committed when the unlawful assembly or any member</p><p>thereof in prosecution of the common object of such assembly uses</p><p>force or violence’. It is submitted that therefore once the unlawful</p><p>assembly is established in prosecution of the common object, i.e., in the</p><p>11</p><p>present case, as held by the courts below, the common object was “to</p><p>snatch the voter list and to cast bogus voting”, each member of the</p><p>unlawful assembly is guilty for the offence of rioting. It is submitted that</p><p>the use of force, even though it be the slightest possible character by</p><p>any one member of the assembly, once established as unlawful</p><p>constitutes rioting. It is submitted that it is not necessary that force or</p><p>violence must be by all but the liability accrues to all the members of the</p><p>unlawful assembly. It is submitted that some may encourage by words,</p><p>others by signs while others may actually cause hurt and yet all</p><p>members of the unlawful assembly would be equally guilty of rioting. It is</p><p>submitted that in the present case both the courts below have found the</p><p>appellants as an active participant in the offence and they cannot be said</p><p>to be the wayfarers or spectators.</p><p>4.4 It is submitted that so far as the offence of voluntarily causing hurt</p><p>as defined under Section 321 IPC and punishable under Section 323</p><p>IPC is concerned, it is submitted that the injuries sustained by PW5 to</p><p>PW8 and PW12 are simple injuries while PW10 sustained grievous</p><p>injuries. It is submitted that as such considering the nature of the</p><p>injuries, the appellants have been let off lightly by the courts below.</p><p>It is further submitted that as such the accused Lakshman Singh,</p><p>Shiv Kumar Singh and Ayodhya Prasad Singh sustained injuries which</p><p>12</p><p>establish beyond doubt their presence and participation. It is submitted</p><p>that in their statement under Section 313 Cr.P.C., they have not</p><p>explained their injuries at all.</p><p>4.5 It is further submitted that as PW5, PW8 & PW10 are injured</p><p>witnesses, as held by this Court in catena of decisions, evidence of an</p><p>injured eye witness has great evidentiary value and unless compelling</p><p>reasons exist, their statements are not to be discarded lightly. It is</p><p>submitted that very cogent and convincing grounds are required to</p><p>discard the evidence of the injured witness. Reliance is placed on the</p><p>judgments of this Court in the cases of State of MP v. Mansingh (2003)</p><p>10 SCC 414(para 9); Abdul Sayeed v. State of MP (2010) 10 SCC 259;</p><p>Ramvilas v. State of Madhya Pradesh, (2016) 16 SCC 316 (para 6);</p><p>State of Uttar Pradesh v. Naresh, (2011) 4 SCC 324 (para 27); and the</p><p>recent decision in the case of Kalabhai Hamirbhai Kachhot v. State of</p><p>Gujarat, (2021) SCC Online SC 347 (paras 20 & 21).</p><p>4.6 It is further submitted that in the present case, right from the very</p><p>beginning, all the accused were named in the FIR and their role and</p><p>complicity have been established with trustworthy, reliable and cogent</p><p>evidence. It is submitted that all the accused persons including the</p><p>present appellants formed the unlawful assembly in furtherance of the</p><p>common object “to snatch the voter list and to cast bogus voting” and</p><p>13</p><p>actually participated in the occurrence and committed the offences. It is</p><p>submitted that as such there is no ground to disbelieve the evidence of</p><p>the injured eye witnesses/eye witnesses.</p><p>4.7 It is further submitted that as such the learned trial Court took a</p><p>very lenient view in imposing the sentence of only six months simple</p><p>imprisonment. It is submitted that once the appellants were found to be</p><p>the members of the unlawful assembly with a common object and</p><p>looking to the injuries sustained by PW5, PW10 & PW12 who sustained</p><p>injuries by fired arm also, as such, all the appellants-accused ought to</p><p>have been convicted along with other accused for the offences under</p><p>Sections 307, 326, 324 and 148 IPC also.</p><p>4.8 It is further submitted that bogus voting seriously undermines the</p><p>most basic feature of democracy and interferes with the conduct of free</p><p>and fair election which has been held by this Court in the case of</p><p>People’s Union for Civil Liberties v. Union of India, (2013) 10 SCC 1, to</p><p>include within its ambit the right of an elector to cast his vote without fear</p><p>or duress. It is submitted that as held by this Court in the aforesaid</p><p>decision, free and fair election is a basic structure of the Constitution and</p><p>necessarily includes within its ambit the right of an elector to cast his</p><p>vote without fear of reprisal, duress or coercion. It is submitted that</p><p>therefore when the trial Court has shown leniency to the appellants in</p><p>14</p><p>sentencing them only for six months simple imprisonment, no</p><p>interference of this Court is called for.</p><p>4.9. Making the above submissions and relying upon the aforesaid</p><p>decisions, it is prayed to dismiss the present appeals.</p><p>5. We have heard the learned counsel for the respective parties at</p><p>length. We have meticulously scanned the entire evidence on record</p><p>and also the findings recorded by the learned trial Court, which are on</p><p>appreciation of the evidence on record. At the outset, it is required to be</p><p>noted that all the accused herein are convicted for the offences under</p><p>Section 323 and 147 IPC and are sentenced to undergo six months</p><p>simple imprisonment for both the offences and the sentences are</p><p>directed to run concurrently.</p><p>It is true that in the impugned judgment the High Court has not at</p><p>all dealt with and/or considered the case on behalf of the</p><p>accused/appellants herein and has not discussed the evidence qua each</p><p>accused, which ought to have been done while deciding the first appeal</p><p>against the judgment and order of conviction. However, as for the</p><p>reasons stated hereinbelow and ultimately, we agree with the final</p><p>conclusion of the High Court confirming the judgment and order passed</p><p>by the learned trial Court, instead of remanding the matter to the High</p><p>Court, we ourselves have re-appreciated the entire evidence on record.</p><p>15</p><p>5.1 In the present case, while convicting the accused, the learned trial</p><p>Court has heavily relied upon the deposition of PW1, PW3 and PW4,</p><p>who are the independent witnesses and PW5, PW8 & PW10, who are</p><p>the injured witnesses. The presence of the independent witnesses and</p><p>even the injured witnesses at the place of the incident is natural. PW1,</p><p>PW3 & PW4, all of whom were the residents of the village and they</p><p>came there to cast their votes and witnessed the incident. All the</p><p>witnesses, PW1, PW3 & PW4 have identified all the accused persons</p><p>and supported the case of the prosecution fully. PW5, PW8, PW10 and</p><p>even PW12 are injured eyewitnesses. Injuries on PW5, PW10 & PW12</p><p>have been established and proved by the prosecution by examining Dr.</p><p>Jawahar Lal (PW7), who examined the above injured witnesses. Their</p><p>injury reports are placed on record by way of Exhibit 1, 1/1 and ½. All</p><p>the witnesses have unequivocally and in the same voice have stated</p><p>that at the relevant time when the voting was going on for the Lok Sabha</p><p>constituency and at that time PW8 - Rajiv Ranjan Tiwari was giving slips</p><p>to the voters and at that time at about 10:40 a.m. all the accused</p><p>persons belonging to another village came there and asked him to stop</p><p>giving slips and to handover the voter list and on refusal the accused</p><p>persons assaulted him with fists, slaps and lathis and he sustained</p><p>injuries. Meanwhile, his brother Priya Ranjan Tiwari came for his rescue</p><p>and at that time one Dinanath Singh took out his country made pistol</p><p>16</p><p>and fired upon him causing several fire-armed injuries. All the accused</p><p>persons were named right from the very beginning of lodging the FIR</p><p>and all the accused persons were specifically named by all the</p><p>witnesses and/or fully supported the case of the prosecution. At this</p><p>stage, it is required to be noted that even some of the accused namely, –</p><p>Lakshman Singh, Shiv Kumar Singh and Ayodhya Prasad Singh</p><p>sustained injuries and they have failed to explain their injuries in their</p><p>313 statements. Thus, their presence at the time and place of incident</p><p>has been established and proved even otherwise. At the cost of the</p><p>repetition, it is observed that PW5, PW8 and PW10 are the injured</p><p>witnesses. Even after they have been fully cross-examined, they have</p><p>fully supported the case of the prosecution, even after thorough crossexamination on behalf of the accused.</p><p>6. In the case of Mansingh (supra), it is observed and held by this</p><p>Court that “the evidence of injured witnesses has greater evidentiary</p><p>value and unless compelling reasons exist, their statements are not to</p><p>be discarded lightly”. It is further observed in the said decision that</p><p>“minor discrepancies do not corrode the credibility of an otherwise</p><p>acceptable evidence”. It is further observed that “mere non-mention of</p><p>the name of an eyewitness does not render the prosecution version</p><p>fragile”.</p><p>17</p><p>6.1 A similar view has been expressed by this Court in the subsequent</p><p>decision in the case of Abdul Sayeed (supra). It was the case of</p><p>identification by witnesses in a crowd of assailants. It is held that “in</p><p>cases where there are large number of assailants, it can be difficult for</p><p>witnesses to identify each assailant and attribute specific role to him”. It</p><p>is further observed that “when incident stood concluded within few</p><p>minutes, it is natural that exact version of incident revealing every minute</p><p>detail, i.e., meticulous exactitude of individual acts, cannot be given by</p><p>eyewitnesses”. It is further observed that “where witness to occurrence</p><p>was himself injured in the incident, testimony of such witness is generally</p><p>considered to be very reliable, as he is a witness that comes with an</p><p>inbuilt guarantee of his presence at the scene of crime and is unlikely to</p><p>spare his actual assailant(s) in order to falsely implicate someone”. It is</p><p>further observed that “thus, deposition of injured witness should be relied</p><p>upon unless there are strong grounds for rejection of his evidence on</p><p>basis of major contradictions and discrepancies therein”.</p><p>6.2 The aforesaid principle of law has been reiterated again by this</p><p>Court in the case of Ramvilas (supra) and it is held that “evidence of</p><p>injured witnesses is entitled to a great weight and very cogent and</p><p>convincing grounds are required to discard their evidence”. It is further</p><p>18</p><p>observed that “being injured witnesses, their presence at the time and</p><p>place of occurrence cannot be doubted”.</p><p>7. Applying the law laid down by this Court in the aforesaid decisions</p><p>to the facts of the case on hand, we see no reason to doubt the</p><p>credibility and/or trustworthiness of PW1, PW3 & PW4 and more</p><p>particularly PW5, PW8 & PW10, who are the injured witnesses. All the</p><p>witnesses are consistent in their statements and they have fully</p><p>supported the case of the prosecution. Under the circumstances, the</p><p>courts below have not committed any error in convicting the accused,</p><p>relying upon the depositions of PW1, PW3, PW4, PW5, PW8 & PW10.</p><p>8. Now so far as the submission on behalf of the appellants –</p><p>accused that all the appellants were alleged to have armed with lathis</p><p>and so far as PW8 is concerned, no injury report is forthcoming and/or</p><p>brought on record and therefore they cannot be convicted for the offence</p><p>under Section 323 IPC is concerned, at the outset, it is required to be</p><p>noted that PW8 in his examination-in-chief/deposition has specifically</p><p>stated that after he sustained injuries, treatment was provided at</p><p>Government Hospital, Paatan. He has further stated in the crossexamination on behalf of all the accused persons except accused</p><p>Dinanath Singh that he sustained 2-3 blows of truncheons. He has also</p><p>stated that he does not exactly remember that how many blows he</p><p>19</p><p>suffered. According to him, he first went to Police Station, Paatan along</p><p>with the SHO of Police Station, Paatan, where his statement was</p><p>recorded and thereafter the SHO sent him to Paatan Hospital for</p><p>treatment. Thus, he was attacked by the accused persons by</p><p>lathis/sticks and he sustained injuries and was treated at Government</p><p>Hospital, Paatan has been established and proved. It may be that</p><p>there might not be any serious injuries and/or visible injuries, the hospital</p><p>might not have issued the injury report. However, production of an injury</p><p>report for the offence under Section 323 IPC is not a sine qua non for</p><p>establishing the case for the offence under Section 323 IPC. Section</p><p>323 IPC is a punishable section for voluntarily causing hurt. “Hurt” is</p><p>defined under Section 319 IPC. As per Section 319 IPC, whoever</p><p>causes bodily pain, disease or infirmity to any person is said to cause</p><p>“hurt”. Therefore, even causing bodily pain can be said to be causing</p><p>“hurt”. Therefore, in the facts and circumstances of the case, no error</p><p>has been committed by the courts below for convicting the accused</p><p>under Section 323 IPC.</p><p>9. Now so far as the conviction of the accused under Section 147 IPC</p><p>is concerned, the presence of all the accused persons at the time of</p><p>incident and their active participation has been established and proved</p><p>by the prosecution by examining the aforesaid witnesses who are the</p><p>20</p><p>independent witnesses and injured witnesses also. The accused</p><p>persons belong to another village. They formed an unlawful assembly in</p><p>prosecution of common object, i.e., “to snatch the voters list and to cast</p><p>bogus voting”. It has been established and proved that they used the</p><p>force and, in the incident, PW5, PW8, PW10 & PW12 sustained injuries.</p><p>All the accused persons-appellants were having lathis. Section 147 IPC</p><p>is a punishable section for “rioting”. The offence of “rioting” is defined in</p><p>Section 146 IPC, which reads as under:</p><p>“146. Rioting – Whenever force or violence is used by an</p><p>unlawful assembly, or by any member thereof, in prosecution of</p><p>the common object of such assembly, every member of such</p><p>assembly is guilty of the offence of rioting.”</p><p>On a fair reading of the definition of “rioting” as per Section 146</p><p>IPC, for the offence of “rioting”, there has to be,</p><p>i) an unlawful assembly of 5 or more persons as defined in</p><p>Section 141 IPC, i.e., an assembly of 5 or more persons and such</p><p>assembly was unlawful;</p><p>ii) the unlawful assembly must use force or violence. Force is</p><p>defined in Section 349 IPC; and</p><p>iii) the force or violence used by an unlawful assembly or by any</p><p>member thereof must be in prosecution of the common object of</p><p>such assembly in which case every member of such assembly is</p><p>guilty of the offence of rioting.</p><p>9.1 “Force” is defined under Section 349 IPC. As per Section 349 IPC,</p><p>“force” means “A person is said to use force to another if he causes</p><p>motion, change of motion, or cessation of motion to that other…….”</p><p>21</p><p>As observed hereinabove, all the accused persons were the</p><p>members of the unlawful assembly and the common intention was “to</p><p>snatch the voters slips and to cast bogus voting”. They used force and</p><p>violence also, as observed hereinabove. It is the case on behalf of the</p><p>accused that there is no specific role attributed to them for the offence of</p><p>rioting under Section 147 IPC. However, as observed hereinabove and</p><p>as held by this Court in the case of Abdul Sayeed (supra), where there</p><p>are large number of assailants, it can be difficult for witnesses to identify</p><p>each assailant and attribute specific role to him. In the present case, the</p><p>incident too concluded within few minutes and therefore it is natural that</p><p>exact version of incident revealing every minute detail, i.e., meticulous</p><p>exactitude of individual acts cannot be given by eyewitnesses. Even</p><p>otherwise, as held by this Court in the case of Mahadev Sharma (supra),</p><p>every member of the unlawful assembly is guilty of the offence of rioting</p><p>even though he may not have himself used force or violence. In</p><p>paragraph 7, it is observed and held as under:</p><p>“7. Section 146 then defines the offence of rioting. This</p><p>offence is said to be committed when the unlawful assembly or</p><p>any member thereof in prosecution of the common object of</p><p>such assembly uses force or violence. It may be noticed here</p><p>that every member of the unlawful assembly is guilty of the</p><p>offence of rioting even though he may not have himself used</p><p>force or violence. There is thus vicarious responsibility when</p><p>force or violence is used in prosecution of the common object of</p><p>the unlawful assembly.”</p><p>22</p><p>Thus, once the unlawful assembly is established in prosecution of</p><p>the common object, i.e., in the present case, “to snatch the voters list</p><p>and to cast bogus voting”, each member of the unlawful assembly is</p><p>guilty of the offence of rioting. The use of the force, even though it be the</p><p>slightest possible character by any one member of the assembly, once</p><p>established as unlawful constitutes rioting. It is not necessary that force</p><p>or violence must be by all but the liability accrues to all the members of</p><p>the unlawful assembly. As rightly submitted by the learned counsel</p><p>appearing on behalf of the State, some may encourage by words, others</p><p>by signs while others may actually cause hurt and yet all the members of</p><p>the unlawful assembly would be equally guilty of rioting. In the present</p><p>case, all the accused herein are found to be the members of the unlawful</p><p>assembly in prosecution of the common object, i.e., “to snatch the voters</p><p>list and to cast bogus voting” and PW5, PW8, PW10 & PW12 sustained</p><p>injuries caused by members of the unlawful assembly, the appellantsaccused are rightly convicted under Section 147 IPC for the offence of</p><p>rioting.</p><p>10. In view of the above, we are of the firm view that the appellants are</p><p>rightly convicted under Sections 323 and 147 IPC and sentenced to</p><p>undergo six months simple imprisonment only for the said offences.</p><p>23</p><p>Before parting, we may observe that though in the present case it</p><p>has been established and proved that all the accused were the members</p><p>of the unlawful assembly in prosecution of the common object, namely,</p><p>“to snatch the voters list and to cast bogus voting” and have been</p><p>convicted for the offence under Section 147 IPC, the trial Court has</p><p>imposed the sentence of only six months simple imprisonment. In the</p><p>case of People”s Union for Civil Liberties (supra), it is observed by this</p><p>Court that freedom of voting is a part of the freedom of expression. It is</p><p>further observed that secrecy of casting vote is necessary for</p><p>strengthening democracy. It is further observed that in direct elections of</p><p>Lok Sabha or State Legislature, maintenance of secrecy is a must and is</p><p>insisted upon all over the world in democracies where direct elections</p><p>are involved to ensure that a voter casts his vote without any fear or</p><p>being victimised if his vote is disclosed. It is further observed that</p><p>democracy and free elections are a part of the basic structure of the</p><p>Constitution. It is also further observed that the election is a mechanism</p><p>which ultimately represents the will of the people. The essence of the</p><p>electoral system should be to ensure freedom of voters to exercise their</p><p>free choice. Therefore, any attempt of booth capturing and/or bogus</p><p>voting should be dealt with iron hands because it ultimately affects the</p><p>rule of law and democracy. Nobody can be permitted to dilute the right</p><p>to free and fair election. However, as the State has not preferred any</p><p>24</p><p>appeal against imposing of only six months simple imprisonment, we</p><p>rest the matter there.</p><p>11. In view of the above and for the reasons stated hereinabove, all the</p><p>appeals fail and deserve to be dismissed and are accordingly dismissed.</p><p>Since, the applications for exemption from surrendering of the accusedappellants herein were allowed by this Court vide orders dated</p><p>15.03.2019 and 08.07.2019 respectively, the accused-appellants are</p><p>directed to surrender forthwith to serve out their sentence.</p><p>…..………………………………..J.</p><p>[Dr. Dhananjaya Y. Chandrachud]</p><p>New Delhi; …………………………………….J.</p><p>July 23, 2021. [M.R. Shah]</p><p>25</p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-70600689876711836812021-07-23T19:47:00.004+05:302021-07-23T19:47:29.770+05:30Sections 420/467/468/471/120B of the IPC and Sections 3(1)(4)/3(15)/3(5) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act - sanction under Section 197 of the CrPC was required before triggering any prosecution against the Station House Officer for filing/failing to file an FIR and for other criminal acts committed during the discharge of his duties.<p><br /></p><p><span style="color: red;">Sections 420/467/468/471/120B of the IPC and
Sections 3(1)(4)/3(15)/3(5) of the Scheduled Caste & Scheduled Tribe
(Prevention of Atrocities) Act - sanction under Section 197 of the CrPC was required
before triggering any prosecution against the Station House Officer for
filing/failing to file an FIR and for other criminal acts committed during the
discharge of his duties.</span></p><p>Section 197 of the CrPC seeks to protect an officer from
unnecessary harassment, who is accused of an offence committed while
acting or purporting to act in the discharge of his official duties and, thus,
prohibits the court from taking cognisance of such offence except with the
previous sanction of the competent authority. Public servants have been
treated as a special category in order to protect them from malicious or
vexatious prosecution. At the same time, the shield cannot protect corrupt
officers and the provisions must be construed in such a manner as to
advance the cause of honesty, justice and good governance. [See
Subramanian Swamy Vs. Manmohan Singh
4
]. The alleged indulgence of the
officers in cheating, fabrication of records or misappropriation cannot be said
to be in discharge of their official duty. However, such sanction is necessary
if the offence alleged against the public servant is committed by him “while
acting or purporting to act in the discharge of his official duty” and in order to find out whether the alleged offence is committed “while acting or
purporting to act in the discharge of his official duty”, the yardstick to be
followed is to form a prima facie view whether the act of omission for which
the accused was charged had a reasonable connection with the discharge of
his duties. [See State of Maharashtra Vs. Dr. Budhikota Subbarao]
5
. The real
question, therefore, is whether the act committed is directly concerned with
the official duty</p><p>What emerges therefrom is that insofar as
the processing of the papers was concerned, Surendra Kumar Mathur, the
Executive Officer, had put his initials to the relevant papers which was held
in discharge of his official duties. Not only that, Sandeep Mathur, who was
part of the alleged transaction, was also similarly granted protection. The
work which was assigned to Respondent No.2 pertained to the subject matter
of allotment, regularisation, conversion of agricultural land and fell within his
domain of work. In the processing of application of Megharam, the file was
initially put up to the Executive Officer who directed the inspection and the
inspection was carried out by the Junior Engineer and only thereafter the
Municipal Commissioner signed the file. The result is that the superior officers, who have dealt with the file, have been granted protection while the
clerk, who did the paper work, i.e. Respondent No.2, has been denied similar
protection by the trial court even though the allegation is of really conspiring
with his superior officers. Neither the State nor the complainant appealed
against the protection granted under Section 197 of the CrPC qua these two
other officers. We are, thus, not able to appreciate why a similar protection ought not
to be granted to Respondent No.2 as was done in the case of the other two
officials by the Trial Court and High Court respectively. The sanction from
competent authority would be required to take cognisance and no sanction
had been obtained in respect of any of the officers. It is in view thereof that
in respect of the other two officers, the proceedings were quashed and that
is what the High Court has directed in the present case as well. In view of the aforesaid, the appeals are dismissed.</p><p>Reportable</p><p>IN THE SUPREME COURT OF INDIA</p><p>CRIMINAL APPELLATE JURISDICTION</p><p>CRIMINAL APPEAL NO. 593 OF 2021</p><p>[Arising out of SLP (Crl) No. 1605 of 2018]</p><p>INDRA DEVI ……APPELLANT</p><p>VERSUS</p><p>STATE OF RAJASTHAN & ANR. ….RESPONDENTS</p><p>WITH</p><p>CRIMINAL APPEAL NO. 594 OF 2021</p><p>[Arising out of SLP (Crl) No.5015 of 2021</p><p>D.No. 7196 of 2019]</p><p>STATE OF RAJASTHAN ……APPELLANT</p><p>VERSUS</p><p>YOGESH ACHARYA ….RESPONDENT</p><p>J U D G M E N T</p><p>SANJAY KISHAN KAUL, J.</p><p>1. Indra Devi, the appellant, is the complainant in FIR No.80 dated</p><p>23.02.2011 registered under Sections 420/467/468/471/120B of the IPC and</p><p>Sections 3(1)(4)/3(15)/3(5) of the Scheduled Caste & Scheduled Tribe</p><p>(Prevention of Atrocities) Act at P.S. Kotwali, Distt. Barmer. It was alleged</p><p>that she and her husband Bhanwar Lal purchased two plots in Khasra</p><p>1</p><p>No.1179/03 located in Distt. Barmer. Out of these two plots, one plot was</p><p>sold to one Megharam while another plot was sold to one Chetan Choudhary.</p><p>In the plot purchased in the name of her husband, a residential house and</p><p>shops are stated to have been made. Megharam is alleged to have</p><p>tampered with and fabricated the agreement with the intention to defraud.</p><p>This was allegedly done in collusion with the then executive officer of the</p><p>Municipality, one Surender Kumar Mathur and “the concerned clerk and</p><p>others”, by enlarging the dimensions of the plot which have been sold to him</p><p>with the intention to grab the land and house occupied by the complainant</p><p>and her husband. The Khasra number is also alleged to have been changed</p><p>from 1179/03 to 1143/04. This fact is stated to have come to the notice of</p><p>the complainant only when they were served with a court notice when they</p><p>were in physical possession of the plot with the house and the shop. Her</p><p>husband is stated to have gone to Jaipur for treatment of cancer. The</p><p>accused persons are, thus, alleged to have committed the offences of</p><p>fraudulently making a scheduled caste women, her cancer diagnosed</p><p>husband and other family members homeless. It may be noted that</p><p>Respondent No.2 herein, Yogesh Acharya was not named in the FIR but,</p><p>apparently, he is stated to be “the concerned clerk”.</p><p>2. In pursuance of the investigation, a chargesheet was filed and charges</p><p>were framed vide order dated 10.04.2012 against Megharam. Once again</p><p>Respondent No.2 was not named in the chargesheet but a reference was</p><p>made to Megharam acting in collusion with “co-accused persons”.</p><p>2</p><p>3. The records placed before us do not reflect how Respondent No.2 was</p><p>exactly roped in, but suffice to say, Respondent No.2 moved an application</p><p>under Section 197 of the CrPC before the trial court stating that he was a</p><p>public servant and what he did in respect of allotment of lease, that was</p><p>executed in favour of Megharam, was done during the course of his official</p><p>duty and thus he was entitled to protection under the aforementioned</p><p>provision. He also sought to assail the chargesheet as the same had been</p><p>filed without obtaining sanction of the competent authority under Section</p><p>197 of the CrPC.</p><p>4. The trial court dismissed the application vide order dated 10.08.2017,</p><p>while noticing that Respondent No.2 had not been mentioned in the FIR. It</p><p>was opined that it was the duty of Respondent No.2 to bring irregularities to</p><p>the knowledge of the competent officers, i.e. Megharam had mentioned the</p><p>wrong Khasra number in the lease but no documents of ownership of the</p><p>land were produced. The trial court was of the view that had the</p><p>discrepancies been brought to the knowledge of the competent officers by</p><p>Respondent No.2, the disputed lease would not have been issued. The result</p><p>of the failure to do so caused the forged lease to be prepared. Respondent</p><p>No.2 had also drafted the disputed lease in which he failed to mention</p><p>necessary details. It was, thus, opined that Respondent No.2 was liable to be</p><p>prosecuted against for having committed criminal offence to procure a</p><p>forged lease. What Respondent No.2 did was held not to be done by the</p><p>3</p><p>public servant in discharge of his official duty and thus protection under</p><p>Section 197 of the CrPC would not come to his aid.</p><p>5. Respondent No.2 thereafter filed a Crl. Misc. Petition No.3138/2017</p><p>under Section 482 of the CrPC before the High Court of Judicature at Jodhpur</p><p>assailing the said order of the trial court. The High Court, vide impugned</p><p>order dated 03.10.2017, allowed the petition. It was opined that the case</p><p>was similar to the one of Devi Dan v. State of Rajasthan</p><p>1</p><p>. The High Court</p><p>had opined therein that sanction under Section 197 of the CrPC was required</p><p>before triggering any prosecution against the Station House Officer for</p><p>filing/failing to file an FIR and for other criminal acts committed during the</p><p>discharge of his duties. The complainant, aggrieved by the said judgment,</p><p>has approached this court by filing a special leave petition. The State has</p><p>also filed an SLP. Leave was granted in both the matters.</p><p>6. The appellant contended before us that the involvement of Respondent</p><p>No.2 only came to light during investigation. He had failed to bring the</p><p>irregularities to the knowledge of his superiors which was instrumental in</p><p>issuing the forged lease. Thus, he had conspired with his superiors in</p><p>dishonestly concealing the forgery, and intentionally omitting mentioning the</p><p>date of the proceedings on the order sheet. Such action of forging</p><p>documents would not be considered as an act conducted in the course of his</p><p>official duties and, thus Section 197 of the CrPC would not give protection to</p><p>Respondent No.2.</p><p>1 Crim. Misc. Pet. No.2177/2013 decided on 10.10.2014</p><p>4</p><p>7. On the other hand, Respondent No.2 endeavoured to support the</p><p>impugned judgment of the High Court by emphasising that in FIR only</p><p>Megharam alongwith some unnamed officials were mentioned. Surender</p><p>Kumar Mathur, the Executive Officer of the Nagar Palika, had filed a petition</p><p>under Section 482 of the CrPC relating to the same transaction and the High</p><p>Court had granted him protection under Section 197 of the CrPC vide order</p><p>dated 22.02.2018. The conduct of putting his initials was held to be an act</p><p>done in discharge of his duties. Similarly, Sandeep Mathur, a Junior</p><p>Engineer, who was part of the same transaction, was granted protection by</p><p>the Sessions Court vide order dated 19.03.2020, once again under the same</p><p>provision, i.e., Section 197 of the CrPC. Both the orders remained</p><p>unchallenged by the complainant and the State. Further, it has been argued</p><p>that Respondent No.2 was simply carrying out his official duty which is</p><p>apparent from the work allotted to him that pertained to allotment,</p><p>regularisation, conversion of agricultural land and all kinds of work relating to</p><p>land and conversion. The application of Megharam was routed through the</p><p>office, and the proceedings show that the file was initially put up before the</p><p>Executive Officer, who directed inspection, which was carried out by the</p><p>Junior Engineer. Thereafter, file was placed before the Executive Officer</p><p>again and only then was it signed by the Municipal Commissioner. The two</p><p>key people involved in the process had already been granted protection and</p><p>thus Respondent No.2 herein, who was merely a Lower Division Clerk, could</p><p>not be denied similar protection.</p><p>5</p><p>8. Learned counsel for Respondent relied upon the judgments of this</p><p>Court in B. Saha & Ors. Vs. M.S. Kochar</p><p>2</p><p> and State of Maharashtra Vs. Dr.</p><p>Budhikota Subbarao</p><p>3</p><p> to contend that Section 197 of the CrPC ought to be</p><p>read in a liberal sense for grant of protection to the public servant with</p><p>respect to actions, which though constitute an offence, are “directly and</p><p>reasonably” connected with their official duties.</p><p>9. We have given our thought to the submissions of learned counsel for</p><p>the parties. Section 197 of the CrPC seeks to protect an officer from</p><p>unnecessary harassment, who is accused of an offence committed while</p><p>acting or purporting to act in the discharge of his official duties and, thus,</p><p>prohibits the court from taking cognisance of such offence except with the</p><p>previous sanction of the competent authority. Public servants have been</p><p>treated as a special category in order to protect them from malicious or</p><p>vexatious prosecution. At the same time, the shield cannot protect corrupt</p><p>officers and the provisions must be construed in such a manner as to</p><p>advance the cause of honesty, justice and good governance. [See</p><p>Subramanian Swamy Vs. Manmohan Singh</p><p>4</p><p>]. The alleged indulgence of the</p><p>officers in cheating, fabrication of records or misappropriation cannot be said</p><p>to be in discharge of their official duty. However, such sanction is necessary</p><p>if the offence alleged against the public servant is committed by him “while</p><p>acting or purporting to act in the discharge of his official duty” and in order</p><p>2 (1979) 4 SCC 177</p><p>3 (1993) 3 SCC 339</p><p>4 (2012) 3 SCC 64</p><p>6</p><p>to find out whether the alleged offence is committed “while acting or</p><p>purporting to act in the discharge of his official duty”, the yardstick to be</p><p>followed is to form a prima facie view whether the act of omission for which</p><p>the accused was charged had a reasonable connection with the discharge of</p><p>his duties. [See State of Maharashtra Vs. Dr. Budhikota Subbarao]</p><p>5</p><p>. The real</p><p>question, therefore, is whether the act committed is directly concerned with</p><p>the official duty.</p><p>10. We have to apply the aforesaid test to the facts of the present case. In</p><p>that behalf, the factum of Respondent No.2 not being named in the FIR is not</p><p>of much significance as the alleged role came to light later on. However,</p><p>what is of significance is the role assigned to him in the alleged infraction,</p><p>i.e. conspiring with his superiors. What emerges therefrom is that insofar as</p><p>the processing of the papers was concerned, Surendra Kumar Mathur, the</p><p>Executive Officer, had put his initials to the relevant papers which was held</p><p>in discharge of his official duties. Not only that, Sandeep Mathur, who was</p><p>part of the alleged transaction, was also similarly granted protection. The</p><p>work which was assigned to Respondent No.2 pertained to the subject matter</p><p>of allotment, regularisation, conversion of agricultural land and fell within his</p><p>domain of work. In the processing of application of Megharam, the file was</p><p>initially put up to the Executive Officer who directed the inspection and the</p><p>inspection was carried out by the Junior Engineer and only thereafter the</p><p>Municipal Commissioner signed the file. The result is that the superior</p><p>5 supra</p><p>7</p><p>officers, who have dealt with the file, have been granted protection while the</p><p>clerk, who did the paper work, i.e. Respondent No.2, has been denied similar</p><p>protection by the trial court even though the allegation is of really conspiring</p><p>with his superior officers. Neither the State nor the complainant appealed</p><p>against the protection granted under Section 197 of the CrPC qua these two</p><p>other officers.</p><p>11. We are, thus, not able to appreciate why a similar protection ought not</p><p>to be granted to Respondent No.2 as was done in the case of the other two</p><p>officials by the Trial Court and High Court respectively. The sanction from</p><p>competent authority would be required to take cognisance and no sanction</p><p>had been obtained in respect of any of the officers. It is in view thereof that</p><p>in respect of the other two officers, the proceedings were quashed and that</p><p>is what the High Court has directed in the present case as well.</p><p>12. In view of the aforesaid, the appeals are dismissed leaving the parties</p><p>to bear their own costs.</p><p>……..……………………………….J.</p><p> [SANJAY KISHAN KAUL]</p><p>……..……………………………….J.</p><p> [HEMANT GUPTA]</p><p>NEW DELHI.</p><p>JULY 23, 2021</p><p>8</p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-77706005146506245572021-07-23T19:30:00.002+05:302021-07-23T19:30:12.381+05:30What constitutes a contract as per clause (ix) itself includes the NIT, the acceptance of the tender, the formal agreement to be executed between the parties post contractor furnishing all the documents and the bid security amount. The result of the aforesaid is that as rightly held in terms of the impugned order all that the appellants can do is to forfeit the bid security amount and, thus, it was so directed. Since as a pre-condition of any coercive action against the respondent, the High Court called upon the appellants to deposit a sum of Rs.10 lakh in terms of the interim order dated 04.08.2010, a direction is made to deduct the bid security amount out of the sum of Rs.10 lakh and to refund the balance amount to the respondent. The needful would now have to be done within two months as in terms of the interim order of this Court dated 08.02.2013 such refund has been stayed. We accordingly dismiss the appeal.<p>Bids were
received and respondent was the successful bidder. In view
thereof a Letter of Intent (‘LoI’) was issued bearing No.2415
dated 05.10.2009 awarding the contract for a total work of
Rs.387.40 lakh.</p><p>The respondent filed a writ petition under Articles 226 & 227
of the Constitution of India seeking quashing of the
termination letter dated 15.04.2010 the recovery order dated
16.07.2010.</p><p>Division Bench of the
Chhattisgarh High Court opined that there was no subsisting
contract inter se the parties to attract the general terms and
conditions as applicable to the contract. Various clauses of the
NIT were referred to and it was opined that there could not be
a valid contract inter se the parties as it was subject to
completion of certain formalities by the respondent, which
were never completed, i.e. furnishing of the performance
security; and the consequence was that the appellant was
within their rights to cancel the award of work and forfeit the
bid security.Thus, only the forfeiture of bid security was
upheld while the endeavour of the appellants to recover the
additional amount in award of contract to another contractor as
compared to the respondent was held not recoverable. We
may notice at the stage of admission of the writ petition and
issuing notice, the respondent was directed to deposit a sum of
Rs.10 lakh vide order dated 04.08.2010 and subject to the
same the endeavour to recover any amount from the
respondent was stayed. Thus, in the final order it was
mentioned that after deducting the bid security amount, the
balance amount out of Rs.10 lakh was to be refunded to therespondent.</p><p>Held that </p><p>What constitutes a
contract as per clause (ix) itself includes the NIT, the
acceptance of the tender, the formal agreement to be executed
between the parties post contractor furnishing all the
documents and the bid security amount. The result of the aforesaid is that as rightly held in terms of the
impugned order all that the appellants can do is to forfeit the
bid security amount and, thus, it was so directed. Since as a
pre-condition of any coercive action against the respondent,
the High Court called upon the appellants to deposit a sum of
Rs.10 lakh in terms of the interim order dated 04.08.2010, a
direction is made to deduct the bid security amount out of the
sum of Rs.10 lakh and to refund the balance amount to the respondent. The needful would now have to be done within
two months as in terms of the interim order of this Court dated
08.02.2013 such refund has been stayed. We accordingly dismiss the appeal.</p><p>Reportable</p><p>IN THE SUPREME COURT OF INDIA</p><p>CIVIL APPELLATE JURISDICTION</p><p>CIVIL APPEAL NO.4358 OF 2016</p><p>SOUTH EASTERN COALFIELDS LTD. & ORS. ... Appellants</p><p>Versus</p><p>M/s. S. KUMAR’s ASSOCIATES AKM (JV) ...Respondent</p><p>J U D G M E N T</p><p>SANJAY KISHAN KAUL, J.</p><p>1. South Eastern Coalfields Ltd., appellant no.1 is a Government</p><p>company registered under the Companies Act, 1956. The</p><p>appellant no.1 floated a tender for the work of “Hiring of HEMM</p><p>and allied equipments including digging machines fitted suitable</p><p>slump breaker for excavating overburden (including drilling in all</p><p>kinds of strata/overburden) loading into tipples, transportation,</p><p>unloading the extra waited material and silt, dumping dozing</p><p>scrapping/removal bands preparation/maintenance of haul road</p><p>water sprinkling and spreading of material at the site shown and</p><p>[1]</p><p>as per direction of the management/Engineer In Charge of PatchD, Mahan I OCM of Bhatgaon Area” on 23.06.2009. Bids were</p><p>received and respondent was the successful bidder. In view</p><p>thereof a Letter of Intent (‘LoI’) was issued bearing No.2415</p><p>dated 05.10.2009 awarding the contract for a total work of</p><p>Rs.387.40 lakh. The LoI stated as under:</p><p>i. A direction was made to the respondents to mobilize</p><p>equipment for executing the work to handle minimum</p><p>allotted Cu.m. per day and “commence the work</p><p>immediately.” Towards the said objective the</p><p>respondent was directed to report to the Chief General</p><p>Manager, Bhatgaon Area for “immediate</p><p>commencement of work.”</p><p>ii. The respondent was called upon to deposit Performance</p><p>Security Deposit for a sum total to 5% of annualized</p><p>contract amount within 28 days from the date of receipt</p><p>of the LoI as per the provisions of the tender document.</p><p>iii. Sign the Integrity Pact before entering into the</p><p>agreement in accordance with the tender document.</p><p>iv. The work order would be issued and the agreement</p><p>would be executed at the Area Office.</p><p>[2]</p><p>v. The date of commencement of work may be intimated</p><p>to the issuing office and agreement may be concluded</p><p>within 28 days as per the provisions of the tender</p><p>document.</p><p>2. The respondent, in pursuance of the LoI, mobilized resources</p><p>at site and a measurement team was sent by appellant no.1 as</p><p>intimated vide letter dated 09.10.2009. On 28.10.2009, the</p><p>appellant issued a letter of site handover/acceptance</p><p>certificate, which was to be taken as the date of</p><p>commencement of the work.</p><p>3. The respondent apparently faced difficulties soon thereafter</p><p>and the letter dated 05.12.2009 of the respondent records that</p><p>though the work was started in all earnest and considerable</p><p>quantity of overburden had been removed, the truck mounted</p><p>drill machine employed by the respondent suffered a major</p><p>breakdown. The work, thus, had to be suspended for reasons</p><p>beyond the control of the respondent. The endeavour to</p><p>rectify the position or arrange alternative machinery did not</p><p>work out and the letter states that the purchase of new</p><p>machines was expected only after about three months. The</p><p>[3]</p><p>contractual relationship apparently deteriorated as on</p><p>09.12.2009, the appellants issued a letter alleging breach of</p><p>terms of contract and rules and regulations applicable by the</p><p>respondent. The appellant further asked the respondent to</p><p>show cause as to why penal action be not initiated of – (a)</p><p>termination of work; (b) blacklisting of the respondent</p><p>company; and (c) award of execution of work to other</p><p>contractor at the cost and risk of the respondent.</p><p>4. Communications in this behalf continued to be exchanged and</p><p>vide letter dated 12.12.2009, the appellants brought to the</p><p>notice of the respondents that they failed to submit the</p><p>performance security deposit which was required to be</p><p>submitted within 28 days from the date of the receipt of the</p><p>LoI as per the terms of the tender. Another show cause notice</p><p>was issued on 15.12.2009 intimating to the respondent that the</p><p>appellants were left with no option except to terminate the</p><p>work awarded to the respondent and get it executed by other</p><p>contractor at the risk and cost of the respondent in terms of</p><p>clause 9.0 of the General Terms & Conditions of the Notice</p><p>Inviting Tenders (‘NIT’) giving a ten days’ time to the</p><p>respondent to respond. It appears that there was no response</p><p>[4]</p><p>and on 23.12.2009, once again, a notice of termination was</p><p>issued. The respondent objected to the same, stating that the</p><p>work could not be executed at their risk and cost as the</p><p>General Terms & Conditions were never part of the NIT but</p><p>form the part of the contract which was never executed inter</p><p>se the parties. In substance, the respondent objected to the</p><p>invocation of the clause for the work to be carried out at their</p><p>risk and cost. The appellant could not rely on clause 9.0 of the</p><p>General Terms & Conditions. The final termination of work</p><p>was carried out vide letter dated 15.04.2010.</p><p>5. It appears that thereafter the work was awarded to another</p><p>contractor at a higher price and on account thereof a letter</p><p>dated 16.07.2010 was issued by the appellants to the</p><p>respondent seeking an amount of Rs.78,07,573/- being the</p><p>differential in the contract value between the respondent and</p><p>the new contractor.</p><p>6. The respondent filed a writ petition under Articles 226 & 227</p><p>of the Constitution of India seeking quashing of the</p><p>termination letter dated 15.04.2010 the recovery order dated</p><p>16.07.2010. The writ petition was contested by the appellants</p><p>who filed their counter affidavit. In terms of the impugned</p><p>[5]</p><p>judgment dated 07.11.2012, the Division Bench of the</p><p>Chhattisgarh High Court opined that there was no subsisting</p><p>contract inter se the parties to attract the general terms and</p><p>conditions as applicable to the contract. Various clauses of the</p><p>NIT were referred to and it was opined that there could not be</p><p>a valid contract inter se the parties as it was subject to</p><p>completion of certain formalities by the respondent, which</p><p>were never completed, i.e. furnishing of the performance</p><p>security; and the consequence was that the appellant was</p><p>within their rights to cancel the award of work and forfeit the</p><p>bid security. Thus, only the forfeiture of bid security was</p><p>upheld while the endeavour of the appellants to recover the</p><p>additional amount in award of contract to another contractor as</p><p>compared to the respondent was held not recoverable. We</p><p>may notice at the stage of admission of the writ petition and</p><p>issuing notice, the respondent was directed to deposit a sum of</p><p>Rs.10 lakh vide order dated 04.08.2010 and subject to the</p><p>same the endeavour to recover any amount from the</p><p>respondent was stayed. Thus, in the final order it was</p><p>mentioned that after deducting the bid security amount, the</p><p>balance amount out of Rs.10 lakh was to be refunded to the</p><p>[6]</p><p>respondent.</p><p>7. The appellant filed Special Leave Petition against the said</p><p>order and notice was issued on 08.02.2013. The direction to</p><p>refund the balance amount of Rs.10 lakh after deducting the</p><p>bid security amount was stayed till further orders. Leave was</p><p>granted on 13.04.2016.</p><p>Submissions of the Appellants</p><p>8. The substratum of the case of the appellants is based on a plea</p><p>that the requirement of deposit of performance security limited</p><p>to 5% of annualized contract amount within 28 days as well as</p><p>the requirement to sign the Integrity Pact before entering into</p><p>the agreement was not a pre-condition to the execution of the</p><p>agreement but a “condition subsequent”. By starting the</p><p>execution of the work from 28.10.2009, learned counsel</p><p>submitted, there was acceptance of the award of the work by</p><p>the respondent. In fact, the respondent vide letter dated</p><p>05.12.2009 acknowledged that they had removed considerable</p><p>amount of overburden and, thus, it is their own case that they</p><p>had carried out substantive work after mobilization of the</p><p>resources immediately after the issuance of LoI. Thus, the</p><p>[7]</p><p>absence of formal execution of the contract did not make a</p><p>difference to the claim of the appellants arising from the</p><p>breach of contract.</p><p>9. The distinction between a ‘condition precedent’ and a</p><p>‘condition subsequent’ was pleaded to be the crux of the issue</p><p>and had not been appreciated by the High Court. To support</p><p>his contention learned counsel referred to two judgments: (a)</p><p>Jawahar Lal Burman v. Union of India1</p><p> and (b) Dresser</p><p>Rand S.A. v. Bindal Agro Chem Ltd. & Anr.2</p><p>10. In Jawahar Lal Burman3</p><p> case the factual matrix was that the</p><p>tender was accepted by the respondent therein, which was</p><p>alleged to have concluded the contract. The respondent’s case</p><p>therein was that the contract was governed by the general</p><p>conditions of contract which included an arbitration</p><p>agreement. The Supreme Court inter alia examined whether</p><p>there was a concluded contract between the parties or not. The</p><p>tender submitted was on a condition that on the acceptance of</p><p>the tender, the contractor shall deposit the security deposit, at</p><p>the option of the Secretary, Department of Supply, within the</p><p>1 (1962) 3 SCR 769</p><p>2 (2006) 1 SCC 751</p><p>3 Supra</p><p>[8]</p><p>period specified by him. A further condition stipulated that if,</p><p>on being called upon to deposit the said security, the</p><p>contractor fails to provide security within the period, such</p><p>failure would constitute a breach of contract entitling the</p><p>opposite party to make other arrangements at the risk and</p><p>acceptance of the contractor. The contractor sought to argue</p><p>that the acceptance letter changed the pre-existing position and</p><p>made the security deposit a condition precedent to the</p><p>acceptance itself and, thus, there was no concluded contract.</p><p>We may notice that in the relevant letter issued by the</p><p>awarding party in this regard, calling upon the security deposit</p><p>of 10% to be deposited it was clearly mentioned that “the</p><p>contract is concluded by this acceptance and formal</p><p>acceptance of tender will follow immediately on receipt of</p><p>treasury receipt.” This Court, thus, discussed the ramification</p><p>of this sentence vis-à-vis the clause stating “subject to your</p><p>depositing 10% as security”. In construing the true effect of</p><p>the clause such requirement of deposit of security was held not</p><p>to be a condition precedent as the letter, as well as the</p><p>conditions of the tender, clearly stated that the contract was</p><p>concluded by its acceptance. Section 7 of the Indian Contract</p><p>[9]</p><p>Act, 1872 requires the acceptance of an offer to be absolute</p><p>and unqualified and not conditional. In the facts of the case</p><p>the acceptance was found to be unconditional and the steps</p><p>were taken as the contract was intended to be executed</p><p>expeditiously relating to delivery of coconut oil which had to</p><p>be supplied within 21 days. The security deposit was, thus,</p><p>opined to be a subsequent condition.</p><p>11. In Dresser Rand S.A.4</p><p>, the contract was to come into force</p><p>upon receipt of the LoI by the supplier. The Supreme Court</p><p>recognized the well settled principles of law that a LoI merely</p><p>indicates party’s intention to enter into a contract with the</p><p>other party in future and is not intended to bind either party</p><p>ultimately to enter into a contract. In this behalf observations</p><p>in an earlier judgment in Rajasthan Coop. Dairy Federation</p><p>Ltd. v. Maha Laxmi Mingrate Marketing Service (P) Ltd.5</p><p>were referred to at page 773 para 39, which reads as under:</p><p>“The letter of intent merely expressed an intention to enter</p><p>into a contract. ….There was no binding legal relationship</p><p>between the appellant and respondent No.1 at this stage</p><p>and the appellant was entitled to look at the totality of</p><p>circumstances in deciding whether to enter into a binding</p><p>contract with respondent No.1 or not.”</p><p>4 Supra</p><p>5 (1996) 10 SCC 405</p><p>[10]</p><p>This was, however, followed by a caveat that it could also not</p><p>be disputed that a letter of intent may be construed as a letter</p><p>of acceptance if such intention is evident from its terms. It is</p><p>not uncommon in contracts involving detailed procedure, that</p><p>in order to save time, a letter of intent communicating the</p><p>acceptance of the offer is issued asking the contractor to start</p><p>the work with a stipulation that the detailed contract would be</p><p>drawn up later. Though such a letter may be termed as a letter</p><p>of intent, it may amount to acceptance of the offer resulting in</p><p>a concluded contract between the parties. This is a matter to</p><p>be decided with “reference to the terms of the letter.” It was</p><p>further observed that where the parties to a transaction</p><p>exchanged letters of intent, the terms of such letters may have</p><p>negative contractual intention but where the language does not</p><p>have negative contractual intention, it is open to the courts to</p><p>hold that the parties are bound by the document and the courts</p><p>would be inclined to do so where the parties have acted on the</p><p>document for a long period of time or have expended</p><p>considerable sums of money in reliance on it.</p><p>12. The terms of LoI were adverted to, more specifically clause</p><p>[11]</p><p>(L) therein, which stated that “this contract will come into</p><p>force upon receipt of this letter of intent by supplier.” In the</p><p>different clauses the LoI were referred to as “this order” and</p><p>“this contract” and it was, thus, argued to that the LoI be</p><p>treated as purchase orders. The Court harmoniously construed</p><p>the terms of the LoI to find that the effect of the LoI was that</p><p>if the purchase orders were placed and LCs were opened the</p><p>supplier was bound to effect supplies within the stipulated</p><p>time at the prices stated in the LoI. It was not interpreted as a</p><p>work order despite the wording utilized in the LoI.</p><p>Submissions of the Respondent</p><p>13. Learned counsel for the respondent, on the other hand, first</p><p>sought to emphasise the aspect discussed in para 39 of the</p><p>judgment in Dresser Rand S.A.6</p><p>case, which opined what an</p><p>LoI was by referring to the earlier view of this Court in</p><p>Rajasthan Coop. Dairy Federation Ltd.7</p><p> case. He further</p><p>sought to refer the judgment of this Court in Bhushan Power</p><p>& Steel Ltd. v. State of Odisha8</p><p> and drew our attention to what</p><p>an LoI was. The nomenclature of the letter would not be the</p><p>6 Supra</p><p>7 Supra</p><p>8 (2017) 2 SCC 125</p><p>[12]</p><p>determinative factor but the substantive nature of the letter</p><p>would determine whether it can be treated as an LoI, which as</p><p>per the legal dictionary means a preliminary understanding</p><p>between the parties who intend to make a contract or join</p><p>together in another action. Some earlier precedents were also</p><p>referred to.9</p><p> In fact the judgment in Dresser Rand S.A.10 case</p><p>was also referred to therein, more specifically paras 39 & 40.</p><p>The LoI in question was held not to be a binding contract</p><p>more specifically because entering into a lease license with</p><p>prospective licensee would require “previous approval” of the</p><p>Central Government. The LoI was held to amount to only an</p><p>intention to enter into a contract which would take place after</p><p>all other formalities are completed.</p><p>14. In order to substantiate his pleas, learned counsel for the</p><p>respondent referred to various clauses of the NIT and the LoI.</p><p>The relevant clauses in the tender document referred to are as</p><p>under:</p><p>“29. Notification of the award and signing of agreement:</p><p>29.1 The bidder, whose bid has been accepted will be</p><p>notified of the award by the employer prior to expiration of</p><p>9 Rishi Kiran Logistics Private Limited v. Board of Trustees of Kandla Port Trust</p><p>and Others (2015) 13 SCC 233</p><p>10 (supra)</p><p>[13]</p><p>the bid validity period by cable, telex and facsimile</p><p>confirmed by registered letter. This letter (hereinafter and</p><p>in Conditions of Contract called the “Letter of</p><p>Acceptance”) will state the sum that the Employer will pay</p><p>the Contractor in consideration of execution and</p><p>completion of the Works by the contractor as prescribed by</p><p>the Contract (hereinafter and in the Contract called “the</p><p>Contract Price”).</p><p>29.2 The notification of award will constitute the</p><p>formation of Contract, subject only to the furnishing of a</p><p>Performance Security/Security Deposit in accordance with</p><p>clause 30.</p><p>29.3 The agreement will incorporate all agreements</p><p>between the employer and the successful bidder within 28</p><p>days following the notification of award along with the</p><p>letter of acceptance.</p><p>30. Performance Security/Security Deposit</p><p>30.1 Security Deposit shall consist of two parts:</p><p>a. Performance Security to be submitted at award of</p><p>work and</p><p>b. Retention Money to be recovered from running bills.</p><p>The Security Deposit shall bear no interest.</p><p>30.2 The performance Security should be 5% of</p><p>annualized value of the contract amount and should be</p><p>submitted within 28 days of receipt of LOA by the</p><p>successful bidder in any of the form given below:</p><p>- A Bank Guarantee in the form given in the bid</p><p>document.</p><p>- Govt. Securities, FDR or any other form of deposit</p><p>stipulated by the owner.</p><p>[14]</p><p>- Demand Draft drawn in favour of the South Eastern</p><p>Coal Fields Ltd. on any Schedule Bank payable at its</p><p>Branch at……….</p><p>The bid security deposit in the form of Bank</p><p>Guarantee shall be duly discharged and returned to the</p><p>contractor. The bid security deposited in the form of</p><p>demand draft shall be adjusted against the initial security</p><p>deposit.</p><p>If the performance security is provided by the successful</p><p>bidder in the form of bank guarantee it shall be issued</p><p>either:</p><p>a. at bidder’s option by a nationalized/scheduled Indian</p><p>bank, or</p><p>b. by a foreign bank located in India and acceptable to</p><p>the employer,</p><p>c. the validity of the bank guarantee shall be for a</p><p>period of one year or ninety days beyond the period of</p><p>contract, whichever is more.</p><p>Failure of the successful bidder to comply with the</p><p>requirement as above shall constitute sufficient ground for</p><p>cancellation of the award of work and forfeiture of the bid</p><p>security.</p><p>34. Integrity Pact</p><p>SECL has signed MOU with M/s. Transparency</p><p>International India for implementation of integrity pact in</p><p>contracts for works valued at Rs.1.00 crore and above. The</p><p>integrity pact document to be signed by the bidders is</p><p>enclosed vide Annexure “D”. Submission of integrity pact</p><p>document duly signed, stamped and accepted is mandatory</p><p>for this tender and is integral part of the tender document.</p><p>In case this is not submitted the tender may be considered</p><p>as not substantially responsive and may be rejected.</p><p>[15]</p><p>…. …. …. …. ….</p><p>Section 3: Conditions of contract/General Terms and</p><p>Conditions</p><p>1. Definition: ix. The “Contract” shall mean the notice</p><p>inviting tender, the tender as accepted by the company and</p><p>the formal agreement executed between the company and</p><p>the contractor together with the documents referred to</p><p>therein including general terms and conditions, special</p><p>conditions, if any, schedule quantities with rates and</p><p>amount, schedule of work.</p><p>2.0 Contract Documents</p><p>i. Articles of agreement,</p><p>ii. Notice inviting tender,</p><p>iii. Letter of Acceptance of tender indicating deviations,</p><p>if any, from the conditions of contract incorporated in the</p><p>bid/tender document issued to the bidder,</p><p>iv. Conditions of contract including general terms and</p><p>conditions, additional terms and conditions, special</p><p>conditions, if any etc. forming part of agreement,</p><p>v. Scope of works/Bills of quantities and</p><p>vi. Finalised work programme.”</p><p>15. Learned counsel laid great emphasis on clause 29.2 aforesaid,</p><p>which provided that notification of award will constitute the</p><p>formation of contract, “subject only” to the furnishing of a</p><p>Performance Security/Security Deposit in accordance with</p><p>[16]</p><p>clause 30. The agreement to be executed was to incorporate</p><p>all the terms inter se the parties. The consequence of not</p><p>furnishing the security deposit was specified in clause 30.2 at</p><p>the end, i.e., it was to constitute sufficient ground for</p><p>cancellation of the award work and forfeiture of the bid</p><p>security. In terms of clause 34 requiring Integrity Pact</p><p>document to be submitted duly signed, the consequence of not</p><p>doing so was that the tender was to be considered as not</p><p>substantially responsive and may be rejected. Lastly under</p><p>Section 3, the Conditions of contract/General Terms and</p><p>Conditions where it was defined in clause (ix) that a contract</p><p>would mean the NIT and the formal agreement to be executed</p><p>between the appellants and the respondent together with the</p><p>documents referred to therein indicating the general terms and</p><p>conditions, special conditions, if any, schedule quantities with</p><p>rates and amount, schedule of work.</p><p>16. It was further contended that after acceptance of tender and on</p><p>execution of contract, work order had to be issued which had</p><p>also not been issued as the preliminaries were not complied</p><p>with. The LoI was also referred to in the aforesaid context to</p><p>show that nothing was done in pursuance thereto except</p><p>[17]</p><p>mobilization of the resources and commencement of the work,</p><p>and that by itself could not be said to be a concluded contract.</p><p>In fact, what was submitted by learned counsel for the</p><p>respondent was that seeing the ground realities, the respondent</p><p>found that it was not feasible to execute the contract and, thus,</p><p>walked away from it, the consequence of which could only be</p><p>the forfeiture of the bid security amount as directed by the</p><p>impugned order, an aspect assailed by the respondent by filing</p><p>a cross appeal. The respondent has not been paid by the</p><p>appellant for whatever they may have done.</p><p>17. A reference was also made to the judgment in State of</p><p>Madhya Pradesh And Anr. v. Firm Gobardhan Dass Kailash</p><p>Nath11 where in respect of a tender for Government sale initial</p><p>deposit of 25% of purchase price was an essential precondition for acceptance or sanction of tender was not</p><p>complied with. It was held that taking into consideration what</p><p>was required to enter into a contract, i.e., in writing and in</p><p>prescribed form and 25% amount not being deposited, it could</p><p>not be said that any concluded contract was arrived at between</p><p>the parties.</p><p>11 AIR 1973 SC 1164 :: (1973) 1 SCC 668</p><p>[18]</p><p>Conclusion</p><p>18. A consideration of the matter in the conspectus of the</p><p>aforesaid pleas leads to a conclusion that it cannot be said that</p><p>a concluded contract had been arrived at inter se the parties.</p><p>19. We have already reproduced aforesaid the terms of the letter of</p><p>award and what it mandated the respondent to do. None of the</p><p>mandates were fulfilled except that the respondent mobilized</p><p>the equipment at site, handing over of the site and the date of</p><p>commencement of work was fixed vide letter dated</p><p>28.10.2009. Interestingly this letter has been addressed to the</p><p>Sub Area Manager of the appellant by the office of the</p><p>appellant. The respondent, thus, neither submitted the</p><p>Performance Security Deposit nor signed the Integrity Pact.</p><p>Consequently, the work order was also not issued nor was the</p><p>contract executed. Thus, the moot point would be whether</p><p>mobilization at site by the respondent would amount to a</p><p>concluding contract inter se the parties. The answer to the</p><p>same would be in the negative.</p><p>20. We would like to state the issue whether a concluded contract</p><p>had been arrived at inter se the parties is in turn dependent on</p><p>[19]</p><p>the terms and conditions of the NIT, the LoI and the conduct</p><p>of the parties. The judicial views before us leave little doubt</p><p>over the proposition that an LoI merely indicates a party’s</p><p>intention to enter into a contract with the other party in</p><p>future.12 No binding relationship between the parties at this</p><p>stage emerges and the totality of the circumstances have to be</p><p>considered in each case. It is no doubt possible to construe a</p><p>letter of intent as a binding contract if such an intention is</p><p>evident from its terms. But then the intention to do so must be</p><p>clear and unambiguous as it takes a deviation from how</p><p>normally a letter of intent has to be understood. This Court</p><p>did consider in Dresser Rand S.A.13 case that there are cases</p><p>where a detailed contract is drawn up later on account of</p><p>anxiety to start work on an urgent basis. In that case it was</p><p>clearly stated that the contract will come into force upon</p><p>receipt of letter by the supplier, and yet on a holistic analysis –</p><p>it was held that the LoI could not be interpreted as a work</p><p>order.</p><p>21. Similarly if we construe the documents as discussed in the</p><p>12 Dresser Rand S.A. (supra); Rajasthan Coop. Dairy Federation Ltd. (supra)</p><p>13 Supra</p><p>[20]</p><p>judgment of this Court in Jawahar Lal Burman14 case it is</p><p>unequivocally mentioned that “contract is concluded by this</p><p>acceptance and formal acceptance of tender will follow</p><p>immediately on receipt of treasury receipt.” Thus, once again,</p><p>it has been stipulated as to at what time a contract would stand</p><p>concluded even though it was later subject to deposit of the</p><p>security amount. It was in these circumstances that the</p><p>requirement of security deposit was treated not as a condition</p><p>precedent but as a condition subsequent. We have to also</p><p>appreciate the nature of contract which was for immediate</p><p>requirement of the full quantity of coconut oil to be supplied</p><p>within 21 days. It was also explicitly mentioned in the LoI</p><p>itself that any failure to deposit the stipulated amount would</p><p>be treated as a breach of contact. This is not the case here,</p><p>where the consequence was simply forfeiture of the bid</p><p>security amount, and cancellation of the ‘award’ and not the</p><p>‘contract’.</p><p>22. If we compare the aforesaid scenario in the present case, the</p><p>period for execution of the contract was one year. The</p><p>respondent worked at the site for a little over the month,</p><p>14 Supra</p><p>[21]</p><p>facing certain difficulties – it is immaterial whether the same</p><p>was of the own making of the respondent or attributable to the</p><p>appellants. No amount was paid for the work done. The</p><p>respondent failed to comply with their obligations under the</p><p>LoI. It is not merely a case of the non-furnishing of</p><p>Performance Security Deposit but even the Integrity Pact was</p><p>never signed, nor work order issued on account of failure to</p><p>execute the contract. We are, thus, of the view that none of the</p><p>judgments cited by learned counsel for the appellants would</p><p>come to their aid in the contractual situation of the present</p><p>case. The judgments referred by learned counsel for the</p><p>appellants Jawahar Lal Burman15 case and Dresser Rand</p><p>S.A.16 case, if one may say so are not directly supporting either</p><p>of the parties but suffice to say that to determine the issue</p><p>what has to be seen are the relevant clauses of the NIT and the</p><p>LoI. On having discussed the non-compliance by the</p><p>respondent of the terms of the LoI we turn to the NIT. Clause</p><p>29.2 clearly stipulates that the notification of award will</p><p>constitute the formation of the contract “subject only” to</p><p>furnishing of the Performance Security/Security Deposit.</p><p>15 Supra</p><p>16 Supra</p><p>[22]</p><p>Thus, it was clearly put as a pre-condition and that too to be</p><p>done within 28 days following notification of the award. The</p><p>failure of the successful bidder to comply with the requirement</p><p>“shall constitute sufficient ground for cancellation of the</p><p>award work and forfeiture of the bid security” as per clause</p><p>30.2. If we analyse clause 34 dealing with the Integrity Pact</p><p>the failure to submit the same would make the tender bid “as</p><p>not substantially responsive and may be rejected.”</p><p>23. We may also add that the definition of what constitutes a</p><p>contract as per clause (ix) itself includes the NIT, the</p><p>acceptance of the tender, the formal agreement to be executed</p><p>between the parties post contractor furnishing all the</p><p>documents and the bid security amount.</p><p>24. The result of the aforesaid is that as rightly held in terms of the</p><p>impugned order all that the appellants can do is to forfeit the</p><p>bid security amount and, thus, it was so directed. Since as a</p><p>pre-condition of any coercive action against the respondent,</p><p>the High Court called upon the appellants to deposit a sum of</p><p>Rs.10 lakh in terms of the interim order dated 04.08.2010, a</p><p>direction is made to deduct the bid security amount out of the</p><p>sum of Rs.10 lakh and to refund the balance amount to the</p><p>[23]</p><p>respondent. The needful would now have to be done within</p><p>two months as in terms of the interim order of this Court dated</p><p>08.02.2013 such refund has been stayed.</p><p>25. We accordingly dismiss the appeal leaving the parties to bear</p><p>their own costs.</p><p>26. Interim order stands discharged.</p><p>……...............................…..J.</p><p> [SANJAY KISHAN KAUL]</p><p>……....................................J.</p><p> [HEMANT GUPTA]</p><p>NEW DELHI,</p><p>July 23, 2021.</p><p>[24]</p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-54948893214573260992021-07-23T16:01:00.000+05:302021-07-23T16:01:04.509+05:30On careful examination of the guidelines/ instructions issued in G.O.Rt.No.100, dated 16.07.2021, in the considered opinion of this Court, the guidelines/instructions are issued in the interest of public in general and devotees/Musallies of Muslim community in particular in view of the COVID-19 pandemic which caused loss to the lives of the people of the country never seen before. Lives of the people is important than the religious beliefs. Therefore, in the considered opinion of this Court, the G.O.Rt.No.100, dated 16.07.2021 is issued in the interest of public at large in view of the COVID-19 pandemic and as such, it is not violative of Article: 25 and 26 of the Constitution of India.<p>On careful examination of the guidelines/
instructions issued in G.O.Rt.No.100, dated
16.07.2021, in the considered opinion of this Court, the
guidelines/instructions are issued in the interest of
public in general and devotees/Musallies of Muslim
community in particular in view of the COVID-19
pandemic which caused loss to the lives of the people
of the country never seen before. Lives of the people is
important than the religious beliefs. Therefore, in the considered opinion of this Court,
the G.O.Rt.No.100, dated 16.07.2021 is issued in the
interest of public at large in view of the COVID-19
pandemic and as such, it is not violative of Article: 25
and 26 of the Constitution of India.</p><p>AP HIGH COURT</p><p> 1</p><p>HON’BLE SRI JUSTICE BATTU DEVANAND</p><p>WRIT PETITION No.14231 OF 2021</p><p>ORDER:</p><p>This writ petition has been filed by the petitioner</p><p>seeking to issue a writ or direction more particularly in</p><p>the nature of a Writ of Mandamus under Article 226 of</p><p>the Constitution of India declaring the action of the</p><p>respondents in issuing G.O.Rt.No.100, dated</p><p>16.07.2021 imposing restrictions on Eid-ul-Adha</p><p>(Bakrid) prayers at Eidgahs and directing to offer</p><p>prayers in Masjids only is illegal and arbitrary, customs</p><p>and beliefs of Islam and violation of Art.25 & 26 of</p><p>Constitution of India and consequently permit the</p><p>people of Muslim community belonging to Nellore to</p><p>offer prayers Eid-ul-Adha (Bakrid) in Bara Shahid</p><p>Eidgah and other Eidgahs situated at Nellore on</p><p>20.07.2021 or 21.07.2021 (depending on moon sight)</p><p>by suspending the G.O.Rt.No.100, dated 16.07.2021</p><p>and pass such other order or orders may deem fit and</p><p>proper in the circumstances of the case.</p><p>2) Heard Sri C. Subodh, learned counsel for the</p><p>petitioner and the learned Government Pleader for </p><p> 2</p><p>Social Welfare appearing for the respondents and</p><p>perused the material available on record.</p><p>3) The petitioner is the resident of Nellore and</p><p>belongs to Muslim community and has strong belief in</p><p>Islam Religion and faith. Eid-ul-Adha (also called as</p><p>Festival of Sacrifice or Bakrid) is one of the two</p><p>important festivals celebrated within Islam (the other</p><p>being Eid-Al-Fitr).</p><p>4) Learned counsel for the petitioner submits that the</p><p>devotees on Eid-Al-Adha perform prayers at Eidgah.</p><p>The Eidgah is defined as Open Air enclosure usually</p><p>outside the city (or at outskirts) reserved for Eid</p><p>Prayers offered in the morning of Eid-Al-Fitr and Eid-AlAdha. It is usually a public place i.e., not used for</p><p>prayers at other times of the year. On the day of Eid,</p><p>the first thing Muslims do in the morning is gather</p><p>usually at a large open ground and offer special prayers</p><p>in accordance with Sunnah (Tradition of Mohammed).</p><p>5) Learned counsel for the petitioner further submits</p><p>that the Eid Al-(Adha) prayer is performed any time</p><p>after sun completely rises up to just before entering of </p><p> 3</p><p>Zuhr Time on the 10th of Dhu al-Hijjah. The Eid</p><p>prayers must be offered in congregation. The</p><p>performing The Eid Al-(Adha) prayers at Eidgah without</p><p>any valid excuse, not offering Eid Prayers in the Eidgah</p><p>is contrary to Sunnah (Tradition of Mohammed).</p><p>6) The 2nd respondent informed the 1st respondent</p><p>vide letter No.E1/20/2019-AP, dated 12.07.2021 that</p><p>the Government of Andhra Pradesh on 03.05.2021 as</p><p>imposed curfew with effect from 05.05.2021 and</p><p>subsequently extended time and dates from time to</p><p>time to take all precautionary measures D-linking the</p><p>spread of COVID pandemic. It is further stated that</p><p>this year Eid Ul Azha (Bakrid) is scheduled to be held</p><p>on 21.07.2021 (subject to moon sight) and requested</p><p>for issuance of necessary instructions to District</p><p>Collectors, Commissioners, Superintendents of Police in</p><p>respect of performance of Eid Prayers during Eid-UlAzha and for Qurbani. Considering the same, the 1st</p><p>respondent issued G.O.Rt.No.100, dated 16.07.2021</p><p>issued guidelines to be followed during Eid-Ul-Adha</p><p>(Bakrid) festival on 21.07.2021.</p><p> 4</p><p>7) The main grievance of the petitioner is that apart</p><p>from the other guidelines issued, prohibiting Eid-UlAdha (Bakrid) prayers Eidgahs and directing to offer</p><p>prayers in Masjids only as illegal, arbitrary, customs</p><p>and beliefs of Islamic and violation of Article 25 and 26</p><p>of the Constitution of India.</p><p>8) On the other hand, learned Government Pleader</p><p>appearing for the respondents submits that</p><p>G.O.Rt.No.100, dated 16.07.2021 is issued in the</p><p>interest of public in view of COVID-19 pandemic and</p><p>sought for dismissal of the writ petition, as interference</p><p>of this Court is not warranted.</p><p>9) Having heard the submissions of the learned</p><p>counsel and upon perusal of material available on</p><p>record, it appears that the Government of Andhra</p><p>Pradesh on 03.05.2021 has imposed curfew with effect</p><p>from 05.05.2021 and subsequently extended time and</p><p>dates from time to time to take all precautionary</p><p>measures in delinking the spread of COVID pandemic.</p><p>The 2nd respondent vide letter, dated 12.07.2021</p><p>brought to the notice of the 1st respondent that</p><p>Government have issued necessary precautionary </p><p> 5</p><p>guidelines to be followed especially during the Eid-UlAzha (Bakrid) Eid prayers for the previous year in view</p><p>of the pandemic COVID-19. The 2nd respondent</p><p>requested the 1st respondent for issuance of necessary</p><p>instructions to the District Collectors and</p><p>Commissioners/Superintendents of Police in respect of</p><p>performance of Eid prayers during Eid-Ul-Azha and for</p><p>Qurbani is scheduled to be held on 21.07.2021 (subject</p><p>to moon sight).</p><p>10) Considering these facts, the 1st respondent issued</p><p>certain guidelines/instructions to be followed in</p><p>ensuring Eid-Ul-Azha (Bakrid Festival on 20.07.2021 or</p><p>21.07.2021 depending on the moon sight.</p><p>11) On careful examination of the guidelines/</p><p>instructions issued in G.O.Rt.No.100, dated</p><p>16.07.2021, in the considered opinion of this Court, the</p><p>guidelines/instructions are issued in the interest of</p><p>public in general and devotees/Musallies of Muslim</p><p>community in particular in view of the COVID-19</p><p>pandemic which caused loss to the lives of the people</p><p>of the country never seen before. Lives of the people is</p><p>important than the religious beliefs. </p><p> 6</p><p>12) Therefore, in the considered opinion of this Court,</p><p>the G.O.Rt.No.100, dated 16.07.2021 is issued in the</p><p>interest of public at large in view of the COVID-19</p><p>pandemic and as such, it is not violative of Article: 25</p><p>and 26 of the Constitution of India.</p><p>13) Accordingly, this Writ Petition is dismissed. There</p><p>shall be no order as to costs.</p><p>As a sequel, miscellaneous petitions pending, if</p><p>any, shall stand closed.</p><p>______________________________</p><p>JUSTICE BATTU DEVANAND</p><p>Date: 20.07.2021</p><p>PGR</p><p> 7</p><p>HON’BLE SRI JUSTICE BATTU DEVANAND</p><p>WRIT PETITION No.14231 OF 2021</p><p>Dt: 20.07.2021</p><p>PGR</p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-61563479166468559452021-07-23T15:53:00.004+05:302021-07-23T15:53:54.585+05:30The petitioner is lady who has been taking shelter in the house of her parents at Rajahmundry which is at a distance of 200 kms from Vijayawada. The submissions made by the petitioner in the petition have not been controverted by the respondent who failed to respond to the notice sent to him. It appears that in two cases filed by the petitioner the respondent has made his appearance and that no prejudice will be caused to him if the case filed by him for restitution of conjugal rights is transferred to Family Court at Rajahmundry. The difficulty of the petitioner to attend for each and every adjournment in which is filed by her husband in the court of Judge, Family Court-cum-XIV Additional and Sessions Court, Vijayawada by undertaking journey of 200 kms from the place of her residence at Rajahmundry can be a reasonable ground to accede to her request made for transfer of HMOP filed by her husband for restitution of conjugal rights to the Family Court at Rajahmundry.<p>The petitioner is lady who has been taking shelter in the house of
her parents at Rajahmundry which is at a distance of 200 kms from
Vijayawada. The submissions made by the petitioner in the petition have
not been controverted by the respondent who failed to respond to the
notice sent to him. It appears that in two cases filed by the petitioner the
respondent has made his appearance and that no prejudice will be caused
to him if the case filed by him for restitution of conjugal rights is
transferred to Family Court at Rajahmundry.
The difficulty of the petitioner to attend for each and every
adjournment in which is filed by her husband in the
court of Judge, Family Court-cum-XIV Additional and Sessions Court,
Vijayawada by undertaking journey of 200 kms from the place of her
residence at Rajahmundry can be a reasonable ground to accede to her
request made for transfer of HMOP filed by her husband for restitution of
conjugal rights to the Family Court at Rajahmundry.
Having regard to the submissions made on behalf of the petitioner,
the transfer petition filed by the petitioner is allowed, ordering for transfer
of HMOP.No.725 of 2020 from the file of Judge, Family Court-cum-XIV
Additional and Sessions Court, Vijayawada to the Family Court at
Rajahmundry, for its disposal in accordance with law. No costs. </p><p>AP HIG COURT</p><p> THE HON'BLE Ms JUSTICE J.UMA DEVI</p><p>Tr.C.M.P.No.61 of 2021</p><p>ORDER:</p><p>This petition is filed under Section 24 of CPC by Smt.Sapavath</p><p>Suddepthi, W/o.Sapavath Mahesh Sai Kumar Naik seeking transfer of</p><p>HMOP.No.725 of 2020 from the file of Family Court-cum-XIV Additional and</p><p>Sessions Court, Vijayawada to the Family Court at Rajahmundry, where she</p><p>is taking shelter in the house of her parents.</p><p> Notice is ordered as against respondent. Despite service of notice,</p><p>he has not entered appearance.</p><p> Petitioner’s contention is that having not been able to bear the</p><p>harassment of her husband she has reached to her parents’ house in the</p><p>month of March, 2019 and since then she is residing there. She has filed a</p><p>case for maintenance as against the respondent herein and the same is</p><p>pending for consideration before the court of IV Judicial 1st Class Chief</p><p>Metropolitan Magistrate at Rajahmundry. She also has filed a case as</p><p>against the respondent under Domestic Violence Act and the same is</p><p>pending before the court of VI Additional Judicial 1st Class Magistrate at</p><p>Rajahmundry. The respondent made appearance in both the cases. As a</p><p>counterblast to the cases filed by her, the respondent has filed</p><p>HMOP.No.725 of 2020 for restitution of conjugal rights and the same is</p><p>pending before the Judge, Family Court-cum-XIV Additional and Sessions</p><p>Court, Vijayawada. Her assertion is that she has to travel a distance of 200</p><p>kms necessarily to attend the court at Vijayawada where the application</p><p>made by her husband for restitution of conjugal rights is pending for</p><p>consideration; It becomes difficult for her to appear for each and every</p><p>adjournment in HMOP.No.725 of 2020 which is pending before the Family</p><p>Court-cum-XIV Additional and Sessions Court, Vijayawada by undertaking </p><p> JUD,J</p><p>Tr.CMP.61 of 2021</p><p>2</p><p>journey of 200 kms from Rajahmundry. Therefore, she is constrained to</p><p>approach this court seeking transfer of HMOP.No.725 of 2020 from the file</p><p>of Judge, Family Court-cum-XIV Additional and Sessions Court, Vijayawada</p><p>to the Family Court at Rajahmundry.</p><p>The petitioner is lady who has been taking shelter in the house of</p><p>her parents at Rajahmundry which is at a distance of 200 kms from</p><p>Vijayawada. The submissions made by the petitioner in the petition have</p><p>not been controverted by the respondent who failed to respond to the</p><p>notice sent to him. It appears that in two cases filed by the petitioner the</p><p>respondent has made his appearance and that no prejudice will be caused</p><p>to him if the case filed by him for restitution of conjugal rights is</p><p>transferred to Family Court at Rajahmundry.</p><p>The difficulty of the petitioner to attend for each and every</p><p>adjournment in HMOP.No.725 of 2020 which is filed by her husband in the</p><p>court of Judge, Family Court-cum-XIV Additional and Sessions Court,</p><p>Vijayawada by undertaking journey of 200 kms from the place of her</p><p>residence at Rajahmundry can be a reasonable ground to accede to her</p><p>request made for transfer of HMOP filed by her husband for restitution of</p><p>conjugal rights to the Family Court at Rajahmundry.</p><p> Having regard to the submissions made on behalf of the petitioner,</p><p>the transfer petition filed by the petitioner is allowed, ordering for transfer</p><p>of HMOP.No.725 of 2020 from the file of Judge, Family Court-cum-XIV</p><p>Additional and Sessions Court, Vijayawada to the Family Court at</p><p>Rajahmundry, for its disposal in accordance with law. No costs.</p><p>Pending miscellaneous applications, if any, shall stand closed in</p><p>consequence.</p><p>Sd/-_______________</p><p>J.UMA DEVI,J</p><p>Date: 20.07.2021</p><p>Dsr </p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-15523520597841352092021-07-23T15:27:00.005+05:302021-07-23T15:27:47.841+05:30Recently Andhra Pradesh High Court implemented a procedure whereby the concerned Court Masters are uploading the daily proceedings / orders / judgments on the same day. This Court deems it appropriate to issue the following guidelines. (a) Parties/Advocates shall download the order copy from the High Court’s Website along with case details which are available in the case status information. (b) While filing the memo on behalf of accused for furnishing sureties, the Advocate shall State in the memo that he/she has downloaded the order copy from the High Court’s Website. The concerned Administrative Officer / Chief Ministerial Officer of the Court shall verify the order from the High Court’s Website and make an 5 endorsement to that effect and then shall place the same before the Court. (c) The Public Prosecutor shall also obtain necessary instructions in this regard and assist the Court. (d) The Presiding Officer on the same day shall dispose of the same and dispatch the release order to the concerned jail authorities forthwith through email or any other electronic mode. (e) In cases of anticipatory bail, the burden to verify the authenticity of the copy is on the concerned Station House Officer and if necessary, he should obtain necessary instructions from the Public Prosecutor’s Office and complete the process on the same day expeditiously as per law. (f) Registrar (Judicial) shall communicate copy of this order to (1) The Principal Secretary for Home Affairs, Andhra Pradesh; (2) The Director General of Police, Andhra Pradesh; (3) The Director of Prosecution, who in turn shall sensitize the Police Officers / Station House Officers / Public Prosecutors and ensure implementation of this order. (g) Registrar (Judicial) shall communicate copy of this order to all the Principal District Judges in the State, who in turn shall sensitize all the Presiding Officers and ensure implementation of this order. (h) Registrar (Judicial) is further directed to circulate the copy of this order to all the Bar Associations in the State through the Principal District Judges, so that they can effectively address their clients’ cause. (i) Registrar (Judicial) shall also issue a separate notification in this regard and the same shall be displayed in the High Court’s Website. 6 11. This order shall come into force from 26.07.2021. <p>Recently Andhra Pradesh High Court implemented a
procedure whereby the concerned Court Masters are uploading
the daily proceedings / orders / judgments on the same day.
This Court deems it appropriate to issue the following
guidelines.
(a) Parties/Advocates shall download the order copy from
the High Court’s Website along with case details which
are available in the case status information.
(b) While filing the memo on behalf of accused for furnishing
sureties, the Advocate shall State in the memo that
he/she has downloaded the order copy from the High
Court’s Website. The concerned Administrative Officer /
Chief Ministerial Officer of the Court shall verify the
order from the High Court’s Website and make an
5
endorsement to that effect and then shall place the same
before the Court.
(c) The Public Prosecutor shall also obtain necessary
instructions in this regard and assist the Court.
(d) The Presiding Officer on the same day shall dispose of
the same and dispatch the release order to the
concerned jail authorities forthwith through email or any
other electronic mode.
(e) In cases of anticipatory bail, the burden to verify the
authenticity of the copy is on the concerned Station
House Officer and if necessary, he should obtain
necessary instructions from the Public Prosecutor’s
Office and complete the process on the same day
expeditiously as per law.
(f) Registrar (Judicial) shall communicate copy of this order
to (1) The Principal Secretary for Home Affairs, Andhra
Pradesh; (2) The Director General of Police, Andhra
Pradesh; (3) The Director of Prosecution, who in turn
shall sensitize the Police Officers / Station House
Officers / Public Prosecutors and ensure implementation
of this order.
(g) Registrar (Judicial) shall communicate copy of this order
to all the Principal District Judges in the State, who in
turn shall sensitize all the Presiding Officers and ensure
implementation of this order.
(h) Registrar (Judicial) is further directed to circulate the
copy of this order to all the Bar Associations in the State
through the Principal District Judges, so that they can
effectively address their clients’ cause.
(i) Registrar (Judicial) shall also issue a separate
notification in this regard and the same shall be
displayed in the High Court’s Website.
6
11. This order shall come into force from 26.07.2021.</p><p>AP HIGH COURT</p><p>THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI</p><p>CRIMINAL PETITION NO.3933 of 2021</p><p>ORDER:-</p><p> This petition is filed under Sections 437 and 439 of Code</p><p>of the Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking</p><p>regular bail to the petitioner/ A-2 in connection with Crime</p><p>No.38 of 2020 of Mothugudem Police Station, East Godavari</p><p>District for the offence punishable under Section Section</p><p>20(b)(ii)(C) r/w Section8 (c) of the Narcotic Drugs and</p><p>Psychotropic Substances Act, 1985 (for brevity “NDPS Act”).</p><p>2. The case of prosecution is that on 03.09.2020 on credible</p><p>information about illegal transportation of ganja, the respondent</p><p>Police rushed to Daralamma Temple, outskirts of Polluru village</p><p>of Chinturu Mandal and while conducting vehicle check at</p><p>about 11.00 AM, they found a Bolero pick-up van bearing</p><p>registration No.AP 24 TB 1550 coming from Donkarai</p><p>proceeding towards Lakkavaram Junction. On seeing the police,</p><p>the inmates of the said Bolero van tried to escape from the spot,</p><p>but the police apprehended them and on search, they found 300</p><p>KGs of ganja. The police seized the contraband, registered the</p><p>crime, arrested the petitioner and remanded him to judicial</p><p>custody on the same day.</p><p>3. Heard Sri G.Venkata Reddy, learned counsel for the</p><p>petitioner and the learned Public Prosecutor for the respondentState. </p><p>2</p><p>4. Learned counsel for the petitioner/A-2 submits that the</p><p>petitioner has nothing to do with the alleged offence and in fact,</p><p>the petitioner was engaged by A-1 on payment of Rs.15,000/-</p><p>who accompanied him. Further the officer who acted as a</p><p>gazetted officer while conducting the search and seizure is a</p><p>veterinary doctor and the said doctor is not a competent person</p><p>to act as a gazetted officer under Sections 42, 43 and 50 of the</p><p>NDPS Act. Learned counsel for the petitioner further submits</p><p>that the entire investigation is completed and the petitioner is</p><p>languishing in jail from 03.09.2020.</p><p>5. On the other hand, the learned Additional Public</p><p>Prosecutor submits that on 13.10.2020 charge sheet was filed.</p><p>6. Taking into consideration the fact that the entire</p><p>investigation is completed and charge sheet is filed and further</p><p>the petitioner is languishing in jail from 03.09.2020, this Court</p><p>deems it appropriate to grant bail to the petitioner. However, on</p><p>certain conditions.</p><p>7. Accordingly, the petitioner/ A-2 shall be enlarged on bail</p><p>on execution of self bond for Rs.2,00,000/- (Rupees two lakhs</p><p>only) with two sureties for a like sum each to the satisfaction of</p><p>the Court of the Additional Judicial First Class Magistrate,</p><p>Rampachodavaram. On such release, the petitioner shall appear </p><p>3</p><p>before the Station House Officer, Mothugudem Police Station,</p><p>East Godavari District, once in a month till completion of trial.</p><p>8. This Court having criminal roster from the last couple of</p><p>months has noticed that in spite of best efforts by the Registry,</p><p>there is significant delay in issuing the certified copies of the</p><p>orders. This Court is conscious of the large number of cases</p><p>pending before the Court, due to dearth of staff, it is difficult to</p><p>issue the order copies within a short span of time. In cases,</p><p>where the accused are entitled for statutory bail as they are</p><p>languishing in jail for more than 60, 90 and 180 days, when</p><p>default bail is granted, it was brought to the notice of the Court</p><p>that there was considerable delay in dispatching the copy of</p><p>orders. Hence, this Court feels that an alternative mechanism</p><p>shall be evolved to address the plight of these undertrial</p><p>prisoners/accused. Recently, the Hon’ble Apex Court has also</p><p>taken a serious note of this issue.</p><p>9. Protection of personal liberty of an individual is</p><p>undeniably a constitutional duty of this Court. Our criminal</p><p>justice system always gives paramount consideration to the</p><p>protection of the rights of the accused. Article 21 of the</p><p>Constitution of India mandates that the personal liberty of an</p><p>accused can be curtailed only after strict compliance with the</p><p>procedure established by law. Sections 438 and 439 of Cr.P.C.</p><p>ensures that the accused is not deprived of his personal liberty</p><p>arbitrarily. The Hon’ble Apex Court in catena of cases has held</p><p>that speedy adjudication process is one of the main facets that </p><p>4</p><p>constitute the essence of access to justice and without it, access</p><p>to justice as a constitutional value will be a mere illusion.</p><p>Denial of this right undermines public confidence in the justice</p><p>delivery system. It is also settled law that the right of an</p><p>accused to have his bail application heard by the Court within a</p><p>reasonable time has been entrenched as a constitutional</p><p>liberty. At the same time, disposal of bail application without</p><p>furnishing the order copy within a reasonable time will not place</p><p>the accused in a better position. Mere emphasizing that an</p><p>accused has an indefeasible fundamental right to bail itself is</p><p>not sufficient without furnishing the copy of the order.</p><p>10. This is high time the Courts shall address these issues</p><p>with a progressive approach by adopting the innovative</p><p>methods. Recently Andhra Pradesh High Court implemented a</p><p>procedure whereby the concerned Court Masters are uploading</p><p>the daily proceedings / orders / judgments on the same day.</p><p>This Court deems it appropriate to issue the following</p><p>guidelines.</p><p>(a) Parties/Advocates shall download the order copy from</p><p>the High Court’s Website along with case details which</p><p>are available in the case status information.</p><p>(b) While filing the memo on behalf of accused for furnishing</p><p>sureties, the Advocate shall State in the memo that</p><p>he/she has downloaded the order copy from the High</p><p>Court’s Website. The concerned Administrative Officer /</p><p>Chief Ministerial Officer of the Court shall verify the</p><p>order from the High Court’s Website and make an </p><p>5</p><p>endorsement to that effect and then shall place the same</p><p>before the Court.</p><p>(c) The Public Prosecutor shall also obtain necessary</p><p>instructions in this regard and assist the Court.</p><p>(d) The Presiding Officer on the same day shall dispose of</p><p>the same and dispatch the release order to the</p><p>concerned jail authorities forthwith through email or any</p><p>other electronic mode.</p><p>(e) In cases of anticipatory bail, the burden to verify the</p><p>authenticity of the copy is on the concerned Station</p><p>House Officer and if necessary, he should obtain</p><p>necessary instructions from the Public Prosecutor’s</p><p>Office and complete the process on the same day</p><p>expeditiously as per law.</p><p>(f) Registrar (Judicial) shall communicate copy of this order</p><p>to (1) The Principal Secretary for Home Affairs, Andhra</p><p>Pradesh; (2) The Director General of Police, Andhra</p><p>Pradesh; (3) The Director of Prosecution, who in turn</p><p>shall sensitize the Police Officers / Station House</p><p>Officers / Public Prosecutors and ensure implementation</p><p>of this order.</p><p>(g) Registrar (Judicial) shall communicate copy of this order</p><p>to all the Principal District Judges in the State, who in</p><p>turn shall sensitize all the Presiding Officers and ensure</p><p>implementation of this order.</p><p>(h) Registrar (Judicial) is further directed to circulate the</p><p>copy of this order to all the Bar Associations in the State</p><p>through the Principal District Judges, so that they can</p><p>effectively address their clients’ cause.</p><p>(i) Registrar (Judicial) shall also issue a separate</p><p>notification in this regard and the same shall be</p><p>displayed in the High Court’s Website. </p><p>6</p><p><br /></p><p>11. This order shall come into force from 26.07.2021.</p><p>12. The Judicial Officers in the State shall bring to the notice</p><p>of the Registrar (Judicial), the issues / hitches, if any, in</p><p>implementing the directions of this Court. In case of</p><p>anticipatory bails, the Police Officials shall bring to the notice of</p><p>the Public Prosecutor, High Court about their difficulties in</p><p>implementing the orders of this Court and the Registrar</p><p>(Judicial) and learned Public Prosecutor shall place the same</p><p>before this Court by the next date of hearing i.e. 31.08.2021.</p><p>13. These directions will be in force until further orders or</p><p>suitable Rules are framed in this regard. It is needless to</p><p>mention, if any clarification or modification is required for</p><p>effective implementation, they will be examined accordingly on</p><p>the next date of hearing.</p><p>14. In spite of all odds, determined efforts are required for</p><p>achieving the goal. Ways and means have to be found out by</p><p>constant thinking and monitoring. It is the responsibility of all</p><p>the stakeholders to uphold the public confidence in the justice</p><p>delivery system by giving timely justice which includes</p><p>furnishing the copies of orders/judgments.</p><p>15. Post on 31.08.2021.</p><p> ___________________________</p><p> LALITHA KANNEGANTI, J</p><p>22nd July, 2021</p><p>PVD </p><p>7</p><p>THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI</p><p>CRIMINAL PETITION No.3933 of 2021</p><p>22nd July, 2021</p><p>PVD </p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-72100082081346455732021-05-28T10:23:00.002+05:302021-05-28T10:23:38.202+05:30Interim custody of crime vehicle = 457. Procedure by police upon seizure of property. (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, 3 to appear before him and establish his claim within six months from the date of such proclamation. There is no dispute with regard to the petitioner’s ownership over the vehicle. It is clear that there is no bar under the NDPS Act on the Courts to order for interim custody of a vehicle which is seized in a crime registered for the offences under the said Act. Section 63 of the NDPS Act reads thus: “(1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under section 60 or section 61 or section 62 and, if it decides that the article is so liable, it may order confiscation accordingly. (2) Where any article or thing seized under this Act appears to be liable to confiscation under section 60 or section 61 or section 62, but the person who committed the offence in connection therewith is not known or cannot be found, the court may inquire into and decide such liability, and may order confiscation accordingly: Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim: Provided further that if any such article or thing, other than a narcotic drug, psychotropic substance, 1[controlled substance,] the opium poppy, coca plant or cannabis plant is liable to speedy and natural decay, or if the court is of opinion that its sale would be for the benefit of its owner, it may at any time direct it to be sold; and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale. 9. From the above it is clear that the Court shall decide whether a vehicle seized in connection with crime registered under the provisions of the NDPS Act is liable for confiscation or not only at the time of convicting, acquitting or discharging the accused. But there is 4 no mention that interim custody of a vehicle cannot be ordered. Further if the vehicle is kept idle it will render useless and there is every likelihood of the vehicle getting destroyed. <p>457. Procedure by police upon seizure of property.
(1) Whenever the seizure of property by any police officer is
reported to a Magistrate under the provisions of this Code, and
such property is not produced before a Criminal Court during an
inquiry or trial, the Magistrate may make such order as he thinks
fit respecting the disposal of such property or the delivery of such
property to the person entitled to the possession thereof, or if
such person cannot be ascertained, respecting the custody and
production of such property.
(2) If the person so entitled is known, the Magistrate may
order the property to be delivered to him on such conditions (if
any) as the Magistrate thinks fit and if such person is unknown,
the Magistrate may detain it and shall, in such case, issue a
proclamation specifying the articles of which such property
consists, and requiring any person who may have a claim thereto,
3
to appear before him and establish his claim within six months
from the date of such proclamation. </p><p>There is no dispute with regard to the petitioner’s ownership
over the vehicle. It is clear that there is no bar under the NDPS Act
on the Courts to order for interim custody of a vehicle which is seized
in a crime registered for the offences under the said Act. Section 63 of
the NDPS Act reads thus:
“(1) In the trial of offences under this Act, whether the accused is
convicted or acquitted or discharged, the court shall decide
whether any article or thing seized under this Act is liable to
confiscation under section 60 or section 61 or section 62 and, if it
decides that the article is so liable, it may order confiscation
accordingly.
(2) Where any article or thing seized under this Act appears to be
liable to confiscation under section 60 or section 61 or section 62,
but the person who committed the offence in connection
therewith is not known or cannot be found, the court may inquire
into and decide such liability, and may order confiscation
accordingly: Provided that no order of confiscation of an article or
thing shall be made until the expiry of one month from the date of
seizure, or without hearing any person who may claim any right
thereto and the evidence, if any, which he produces in respect of
his claim: Provided further that if any such article or thing, other
than a narcotic drug, psychotropic substance, 1[controlled
substance,] the opium poppy, coca plant or cannabis plant is
liable to speedy and natural decay, or if the court is of opinion
that its sale would be for the benefit of its owner, it may at any
time direct it to be sold; and the provisions of this sub-section
shall, as nearly as may be practicable, apply to the net proceeds
of the sale.
9. From the above it is clear that the Court shall decide whether a
vehicle seized in connection with crime registered under the
provisions of the NDPS Act is liable for confiscation or not only at the
time of convicting, acquitting or discharging the accused. But there is
4
no mention that interim custody of a vehicle cannot be ordered.
Further if the vehicle is kept idle it will render useless and there is
every likelihood of the vehicle getting destroyed. </p><p>AP. HIGH COURT AMARAVATHI </p><p>THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI</p><p>CRIMINAL REVISION CASE No.504 of 2020</p><p><span style="background-color: #f3fafe; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">Kolluri Sunitha</span></p><p><span style="background-color: #f3fafe; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">-vs-</span></p><p><span style="background-color: #f5f1fc; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">THE STATE OF ANDHRA PRADESH</span></p><p>ORDER:-</p><p> This Criminal Revision Case is filed under Sections 397 and</p><p>401 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’)</p><p>seeking to set aside the order dated 14.09.2020 passed in</p><p>Crl.M.P.No.1 of 2020 in crime No.34 of 2020 passed by the learned</p><p>Special Court for Trial of Offences under the Narcotic Drugs and</p><p>Psychotropic Substances Act, 1985 –Cum-I Additional District and</p><p>Sessions Judge, Prakasam District, Ongole and consequently</p><p>release the vehicle i.e. Hyundai Red I20 car bearing registration</p><p>No.AP 27 BT 7013.</p><p>2. Heard Sri Marri Venkata Ramana, learned counsel for the</p><p>petitioner and learned Public Prosecutor appearing on behalf of</p><p>respondent No.1-State.</p><p>3. The learned counsel for the petitioner submits that the vehicle</p><p>was seized by the Police in connection with crime No.34m of 2020</p><p>registered for the offences punishable under Sections 354A, 354D,</p><p>506, 509, 366 of the Indian Penal Code, 1860 (for short ‘I.P.C.’ and</p><p>Section 20(B) and 8(c) of the Narcotic Drugs and Psychotropic</p><p>Substances Act, 1985 (for short ‘NDPS Act’). Subsequent to the</p><p>seizure of the vehicle, the petitioner approached the Court below by</p><p>filing a petition under Section 457 Cr.P.C. seeking interim custody of</p><p>the subject vehicle. But the said petition was dismissed on the</p><p>ground that the petitioner is not third party and she is mother of</p><p>respondent No.2/accused in the crime. In the order impugned it was</p><p>also observed that without disclosing the said fact the petitioner has </p><p>2</p><p>filed the petition as third party and the Court has also observed that</p><p>if once the vehicle is released on interim custody, the same will go</p><p>into the hands of the accused being her son against whom there is</p><p>accusation under NDPS Act. There is strong apprehension from the</p><p>Police that he would do similar offences by using the said vehicle.</p><p>4. Learned counsel for the petitioner also submits that in the</p><p>cause title itself it was shown that the petitioner and respondent</p><p>No.2/accused are wife and son of Ramanaiah @ Venkata Ramanaiah.</p><p>There is no intention on the part of the petitioner to suppress the</p><p>said fact. He also submits that if the vehicle is kept idle it will render</p><p>useless and there is every likelihood of the vehicle getting damaged.</p><p>5. Learned counsel for the petitioner also submits that even if a</p><p>vehicle is seized under NDPS Act for use of the vehicle in transporting</p><p>narcotic goods, the owner is entitled for interim custody of the vehicle</p><p>and this Court has granted interim custody of the vehicles in similar</p><p>cases. Hence, this petition may be allowed.</p><p>6. It is appropriate to extract Section 457 of Cr.P.C which reads</p><p>thus:</p><p>457. Procedure by police upon seizure of property.</p><p>(1) Whenever the seizure of property by any police officer is</p><p>reported to a Magistrate under the provisions of this Code, and</p><p>such property is not produced before a Criminal Court during an</p><p>inquiry or trial, the Magistrate may make such order as he thinks</p><p>fit respecting the disposal of such property or the delivery of such</p><p>property to the person entitled to the possession thereof, or if</p><p>such person cannot be ascertained, respecting the custody and</p><p>production of such property.</p><p>(2) If the person so entitled is known, the Magistrate may</p><p>order the property to be delivered to him on such conditions (if</p><p>any) as the Magistrate thinks fit and if such person is unknown,</p><p>the Magistrate may detain it and shall, in such case, issue a</p><p>proclamation specifying the articles of which such property</p><p>consists, and requiring any person who may have a claim thereto, </p><p>3</p><p>to appear before him and establish his claim within six months</p><p>from the date of such proclamation.</p><p>7. As per Section 457 of Cr.P.C., if the person is known and when</p><p>there is no dispute about the ownership of the vehicle, the Magistrate</p><p>may order delivery of the property to him on such conditions as the</p><p>Magistrate thinks fit.</p><p>8. There is no dispute with regard to the petitioner’s ownership</p><p>over the vehicle. It is clear that there is no bar under the NDPS Act</p><p>on the Courts to order for interim custody of a vehicle which is seized</p><p>in a crime registered for the offences under the said Act. Section 63 of</p><p>the NDPS Act reads thus:</p><p>“(1) In the trial of offences under this Act, whether the accused is</p><p>convicted or acquitted or discharged, the court shall decide</p><p>whether any article or thing seized under this Act is liable to</p><p>confiscation under section 60 or section 61 or section 62 and, if it</p><p>decides that the article is so liable, it may order confiscation</p><p>accordingly.</p><p>(2) Where any article or thing seized under this Act appears to be</p><p>liable to confiscation under section 60 or section 61 or section 62,</p><p>but the person who committed the offence in connection</p><p>therewith is not known or cannot be found, the court may inquire</p><p>into and decide such liability, and may order confiscation</p><p>accordingly: Provided that no order of confiscation of an article or</p><p>thing shall be made until the expiry of one month from the date of</p><p>seizure, or without hearing any person who may claim any right</p><p>thereto and the evidence, if any, which he produces in respect of</p><p>his claim: Provided further that if any such article or thing, other</p><p>than a narcotic drug, psychotropic substance, 1[controlled</p><p>substance,] the opium poppy, coca plant or cannabis plant is</p><p>liable to speedy and natural decay, or if the court is of opinion</p><p>that its sale would be for the benefit of its owner, it may at any</p><p>time direct it to be sold; and the provisions of this sub-section</p><p>shall, as nearly as may be practicable, apply to the net proceeds</p><p>of the sale.</p><p>9. From the above it is clear that the Court shall decide whether a</p><p>vehicle seized in connection with crime registered under the</p><p>provisions of the NDPS Act is liable for confiscation or not only at the</p><p>time of convicting, acquitting or discharging the accused. But there is </p><p>4</p><p>no mention that interim custody of a vehicle cannot be ordered.</p><p>Further if the vehicle is kept idle it will render useless and there is</p><p>every likelihood of the vehicle getting destroyed.</p><p>10. Taking into consideration the submissions made by the learned</p><p>counsel for the petitioner and in view of the settled law this Court</p><p>feels it appropriate to grant interim custody of the vehicle to the</p><p>petitioner by imposing certain conditions.</p><p>11. Accordingly the criminal revision case is allowed and the order</p><p>dated 14.09.2020 passed in Crl.M.P.No.1 of 2020 by the learned</p><p>Special Court Designated for Trial of Offences Under the Narcotic</p><p>Drugs and Psychotropic Substances Act, 1985 –Cum- I Additional</p><p>District and Sessions Judge, Prakasam District, Ongole, is set aside.</p><p>The vehicle i.e. Hyundai Red I20 car bearing registration No.AP27 BT</p><p>7013 is ordered to be given interim custody to the petitioner on</p><p>condition of her executing a bond for a sum of Rs.1,00,000/- (Rupees</p><p>one lakh only) with one surety for a likesum to the satisfaction of the</p><p>Special Court Designated for Trial of Offence Under the Narcotic</p><p>Drugs and Psychotropic Substances Act, 1985-cum-I Additional</p><p>District and Sessions Judge, Prakasam District, Ongole.</p><p>As a sequel, all the pending miscellaneous applications are</p><p>closed.</p><p>____________________________________</p><p>JUSTICE LALITHA KANNEGANTI</p><p><br /></p><p>Date : 05.01.2021</p><p>IKN</p><p><br /></p><p> </p><p>5</p><p>THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI</p><p>Allowed</p><p>CRIMINAL REVISION CASE No.504 of 2020</p><p>05.01.2021</p><p>IKN </p><p>6 </p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-61919497532621853942021-05-26T11:17:00.003+05:302021-05-26T11:17:50.860+05:30seeking to enlarge the petitioner/Accused on bail in the event of his arrest in connection with Crime No.28 of 2021 on the file of Varikuntapadu Police Station, SPSR Nellore District, registered for the offences under Sections 417, 420, 465, 466, 468, 471, 473 r/w 120b of Indian Penal Code, 1860= As the offences registered against the petitioner are punishable with less than seven years imprisonment, this Court deems it fit to pass a direction to the Investigating Officer to follow the guidelines prescribed by the Hon’ble apex Court in Arnesh Kumar (supra) and the procedure prescribed in Section 41-A of Cr.P.C.<p>AP HIGH COURT </p><p>THE HON’BLE SRI JUSTICE K. SURESH REDDY</p><p>CRIMINAL PETITION No.2928 OF 2021</p><p><span style="background-color: #f3fafe; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">SMT NADELLA RAMA DEVI</span></p><p>-VS-</p><p><span style="background-color: #f5f1fc; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">THE STATE OF ANDHRA PRADESH</span></p><p>ORDER:</p><p> This Criminal Petition is filed under section 438 of the Code of</p><p>Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking to enlarge the</p><p>petitioner/Accused on bail in the event of his arrest in connection with</p><p>Crime No.28 of 2021 on the file of Varikuntapadu Police Station, SPSR</p><p>Nellore District, registered for the offences under Sections 417, 420, 465,</p><p>466, 468, 471, 473 r/w 120b of Indian Penal Code, 1860 (for short IPC).</p><p>2. Heard the counsel for the petitioner and the Additional Public</p><p>Prosecutor appearing for the 1st respondent / State.</p><p>3. Learned counsel for the petitioner submits that as the offences</p><p>registered against the petitioner are punishable with less than seven</p><p>years imprisonment, requested this Court directing the Investigating</p><p>Officer to follow the procedure prescribed under Section 41-A of Cr.P.C.,</p><p>and the guidelines prescribed by the Apex Court in Arnesh Kumar v.</p><p>State of Bihar1.</p><p>4. The learned Additional Public Prosecutor stated that he has no</p><p>objection for issuing such a direction.</p><p>5. As the offences registered against the petitioner are punishable</p><p>with less than seven years imprisonment, this Court deems it fit to pass</p><p>a direction to the Investigating Officer to follow the guidelines prescribed</p><p>by the Hon’ble apex Court in Arnesh Kumar (supra) and the procedure</p><p>prescribed in Section 41-A of Cr.P.C.</p><p><br /></p><p>1</p><p>(2014) 8 SCC 273</p><p>2</p><p>6. In the result, the criminal petition is disposed of, directing the</p><p>Investigating Officer to follow the procedure prescribed in Section 41-A of</p><p>Cr.P.C., and the guidelines issued by the Hon’ble apex Court in Arnesh</p><p>Kumar (supra).</p><p> As a sequel, the miscellaneous applications, if any pending, shall</p><p>stand closed.</p><p>_______________________</p><p>K. SURESH REDDY, J</p><p>20th May, 2021</p><p>sj </p><p>3</p><p>11</p><p>THE HON’BLE SRI JUSTICE K. SURESH REDDY</p><p>CRIMINAL PETITION No.2928 OF 2021</p><p>Dated : 20.05.2021</p><p>sj </p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-30150819708415394652021-05-26T11:02:00.003+05:302021-05-26T11:02:35.933+05:30Though the learned Senior counsel submits that this Court as well as the Sessions Court have got concurrent jurisdiction, this Court is not inclined to entertain this petition directly without moving the same before the trial Judge, where entire material including remand report will be available on his production. It is also to be noted here that the petitioner is still in police custody and he is not yet produced before appropriate Court for judicial remand. In that view of the matter, this Court is not inclined to entertain the present petition seeing bail and the same is liable to be dismissed.;Even assuming for the sake of argument, that an application seeking bail is maintainable at this stage, but the guidelines framed for hearing bail applications during Summer Vacation -2021 categorically states as under : Criminal Matters : i) Anticipatory bail matters ii) Bail applications, if bail is refused by Magistrates and Sessions Judges/ Additional Sessions Judges. 3 iii) Criminal Appeals and Criminal Revision Cases in which the accused are convicted. 8. As per the above guidelines, it is very much clear that only against the orders passed dismissing the bail application by the trial Court, then only, bail application can be moved before this Court.;<p>AP HIGH COURT</p><p>THE HON’BLE SRI JUSTICE K. SURESH REDDY</p><p>CRIMINAL PETITION No.2998 OF 2021</p><p><span style="background-color: #f3fafe; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">k Raghurama krishna Raju</span></p><p>-VS-</p><p><span style="background-color: #f5f1fc; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">State of ap</span></p><p>ORDER:</p><p>This petition is filed under Sections 437 and 439 of the</p><p>Code of Criminal Procedure, 1973 to enlarge the</p><p>petitioner/Accused on bail in Crime No.12 of 2021 of CID Police</p><p>Station, Mangalagiri, Guntur, Andhra Pradesh, registered for the</p><p>offences punishable under Sections 124-A, 153(A), 505 r/w 120-</p><p>B of Indian Penal Code, 1860 (for short ‘IPC’).</p><p>2. Brief facts of the case are that the petitioner is Member of</p><p>Parliament having been elected to Lok Sabha from Narasapuram</p><p>Parliamentary constituency in Andhra Pradesh. While so, on</p><p>14.5.2021 at about 5.00 pm., police arrested the petitioner at his</p><p>residence at Hyderabad in the above crime, as he has been</p><p>indulging in hate speeches against certain communities and</p><p>promoting disaffection against the Government, which will cause</p><p>loss of faith in the Government and also cause disturbances.</p><p>3. This petition was moved by way of House Motion on</p><p>14.5.2021 and the same was allotted to this Court at about 10.30</p><p>pm., As there is no technical staff to operate Blue Jeans App and</p><p>there is no Court Master and Court Officer because of Lock down</p><p>imposed in the State of Andhra Pradesh, it was heard through</p><p>telephone. With the consent of both the learned counsels, the</p><p>present petition is taken up today for hearing.</p><p>2</p><p>4. Heard learned Senior counsel Sri B.Adinarayana Rao for</p><p>the petitioner as well as the learned Additional Advocate General</p><p>for the respondents.</p><p>5. As the petitioner has not moved any application seeking bail</p><p>before the Sessions Judge, this Court has taken objection for the</p><p>same. Learned Senior counsel submitted that there is concurrent</p><p>jurisdiction in entertaining bail applications by the High Court as</p><p>well as the Sessions Court. In support of his contentions, learned</p><p>Senior Counsel has placed reliance on the judgments reported in</p><p>2014 (16) SCC 623 and also 2018 SCC On-line Hyderabad</p><p>224.</p><p>6. On the other hand, learned Additional Advocate General</p><p>has opposed the petition and stated that the present petition filed</p><p>under Sections 437 and 439 Cr.P.C., is not at all maintainable as</p><p>the petitioner was not yet produced before the concerned</p><p>Magistrate. In support of his contentions, learned Additional</p><p>Advocate General has placed reliance on the judgments reported</p><p>in 2019 (2) ALT (Crl.) 209 (DB) and 2004 (7) SCC 558.</p><p>7. Even assuming for the sake of argument, that an</p><p>application seeking bail is maintainable at this stage, but the</p><p>guidelines framed for hearing bail applications during Summer</p><p>Vacation -2021 categorically states as under :</p><p>Criminal Matters :</p><p>i) Anticipatory bail matters</p><p>ii) Bail applications, if bail is refused by Magistrates and</p><p>Sessions Judges/ Additional Sessions Judges.</p><p>3</p><p>iii) Criminal Appeals and Criminal Revision Cases in</p><p>which the accused are convicted.</p><p>8. As per the above guidelines, it is very much clear that only</p><p>against the orders passed dismissing the bail application by the</p><p>trial Court, then only, bail application can be moved before this</p><p>Court.</p><p>9. Though the learned Senior counsel submits that this Court</p><p>as well as the Sessions Court have got concurrent jurisdiction,</p><p>this Court is not inclined to entertain this petition directly without</p><p>moving the same before the trial Judge, where entire material</p><p>including remand report will be available on his production. It is</p><p>also to be noted here that the petitioner is still in police custody</p><p>and he is not yet produced before appropriate Court for judicial</p><p>remand.</p><p>10. In that view of the matter, this Court is not inclined to</p><p>entertain the present petition seeing bail and the same is liable to</p><p>be dismissed. However, the petitioner can approach the</p><p>concerned trial Judge and seek necessary reliefs.</p><p>With the above observation, the Criminal Petition is</p><p>dismissed.</p><p>As a sequel, the miscellaneous applications, if any, shall</p><p>stand closed.</p><p>4</p><p>_______________________</p><p>K. SURESH REDDY, J</p><p>Date : 15.5.2021.</p><p>Note: Furnish C.C. today</p><p>B/o</p><p>RPD</p><p>5</p><p>THE HON’BLE SRI JUSTICE K. SURESH REDDY</p><p>CRIMINAL PETITION No.2998 of 2021</p><p>Date : 15.5.2021</p><p>Note: Furnish C.C. today</p><p>B/o</p><p>RPD</p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-40777735510829405542021-05-10T16:21:00.004+05:302021-05-10T16:21:47.262+05:30ORDER 39 RULE 1 &2 - SUIT FOR CANCELLATION OF REG. GIFT DEED AND ALSO FOR PARTITION - We feel that there is nothing wrong in trial Court looking into the evidence of P.W.1 and deciding the issue without reference to the documents, more particularly, Aadhar card, gas connection, correspondence from Margadarsi finance, renewal of driving licence etc., belonging to the appellant – plaintiff. Probably all these documents were marked only to show that the appellant - plaintiff was residing at the said place. Nonconsideration of these documents, in our view, may not go to the root of the matter, while deciding granting of injunction, in view of the evidence of P.W.1, who is the plaintiff himself. 15. In paragraph 13 of the plaint it has been stated that, the appellant – plaintiff is in possession of the plaint schedule property along with his brother 2nd respondent – 2nd defendant, since the same is a family property. But, in the evidence of P.W.1, it has been elicited that, in the month of November, 2019, he came from U.S.A. He stayed in Gowtham Lodge, Tenali. His own evidence shows that his father is residing in the ground floor portion of the suit property and he also admits that his father gave a report against him in II Town Police Station, Tenali, alleging that the appellant – plaintiff is harassing him. From the above, prima facie, it appears that the plea taken that he is in possession of the property may not be correct. Apart from that it is also elicited in the crossexamination of P.W.1 that, in the first floor of the property, one tenant is residing and the tenant is paying rent to his sister through online banking. The evidence also shows that his sister 9 got mutated her name in municipal records in pursuance of Ex.A1 gift deed. Apart from that, she got mutated her name in electricity service records as well. Therefore, prima facie, the evidence of P.W.1 itself shows that he was not in possession of the property. Even as per recitals of gift deed – Ex.A1, the property stands in the name of the 1st respondent – 1st defendant and the possession of the suit schedule property was delivered to her by Vijaya Lakshmi. 16. Apart from all these things it is also to be noted that, appellant – plaintiff also sought partition of the property and allotment of share to him and other respondents – defendants. As per the averments in the plaint, they are in the joint possession of the property. Such being the position, the question of granting temporary injunction against co-owners would not arise.<p><br /></p><p>AP HIGH COURT</p><p>AP HIGH COURT</p><p>THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR</p><p>AND</p><p>THE HON’BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI</p><p>Civil Miscellaneous Appeal No.157 of 2020</p><p><span style="background-color: #f3fafe; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">Senithangappa Srinivasa Rao</span></p><p>-VS-</p><span style="background-color: #f5f1fc; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">Vemulapalli Roja Kishore</span><br style="font-family: Arial, Helvetica, sans-serif; font-size: 12px;" /><p>JUDGMENT : (per the Hon’ble Sri Justice C.Praveen Kumar)</p><p>1. Assailing the order dated 13.2.2020 passed in I.A.No.427</p><p>of 2017 in O.S.No.24 of 2017 on the file of the</p><p>XI Additional District and Sessions Judge, Tenali, the present</p><p>Civil Miscellaneous Appeal is filed under Order 43 Rule 1 C.P.C.</p><p>2. The facts, which lead to filing of the appeal, are as under :</p><p> The appellant herein who is the plaintiff in the suit filed</p><p>the suit against respondents – defendants for cancellation of a</p><p>registered sale deed said to have been executed by one Vijaya</p><p>Lakshmi, who is the mother of both parties. According to the</p><p>appellant – plaintiff, his parents gave Rs.50,00,000/-, gold and</p><p>silver jewellery worth Rs.70,00,000/- on the occasion of</p><p>marriage of the 1st respondent – 1st defendant in the year 1993</p><p>towards Sthridhana. According to him, the said Vijaya Lakshmi,</p><p>who is also mother of the appellant, refused to give ‘A’ schedule</p><p>property to the 1st respondent – 1st defendant. It is stated that</p><p>the 1st respondent – 1st defendant and her daughter, who is a</p><p>Doctor, provided treatment to their mother at Guntur, as she fell</p><p>sick due to cancer. The daughter of the 1st respondent – 1st</p><p>defendant is said to have caused mental agony, physical</p><p>sufferance and mental loss to Vijaya Lakshmi. On account of</p><p>negligence, misconduct etc., she died on 2.3.2017. It is pleaded </p><p> 2</p><p>that the 1st respondent – 1st defendant, her husband and</p><p>daughter kept quiet till their mother became unsound and</p><p>unable to acknowledge the worldly affairs and thereafter, got</p><p>executed the alleged gift deed in their favour on 22.2.2017.</p><p>Hence, he pleaded that, alleged gift deed is not valid, illegal and</p><p>unenforceable and accordingly, the same is liable to be</p><p>cancelled. It is further stated that, the appellant – plaintiff is</p><p>entitled to 1/3rd share in the plaint ‘A’ schedule property by way</p><p>of partition and that they are in possession and enjoyment of the</p><p>same. It is urged that the 1st respondent – 1st defendant and her</p><p>men are making every effort to dispossess the appellant –</p><p>plaintiff from the plaint schedule property and are making</p><p>efforts to alienate the said property to third parties. Under those</p><p>circumstances, he sought for a temporary injunction restraining</p><p>the 1st respondent – 1st defendant and her men from interfering</p><p>with peaceful possession and enjoyment of the rights of the</p><p>appellant – plaintiff in plaint ‘A’ schedule property.</p><p>3. The 2nd respondent – 2nd defendant remained ex parte,</p><p>while the 1st respondent – 1st defendant filed counter denying</p><p>the averments in the petition. It has been stated that the</p><p>1st respondent – 1st defendant took every care of her mother and</p><p>got her treated in best of the hospitals in Vijayawada and</p><p>Guntur. In fact, it is stated that, she also took her mother to</p><p>Hyderabad and got her treated in KIMS in the month of July,</p><p>2016 and an operation was performed by Dr.Jagadishwar Goud.</p><p>As the appellant – plaintiff was in U.S.A. at that time, he may </p><p> 3</p><p>not be knowing these facts. It is also stated that, after the</p><p>operation, Dr.Jagadishwar Goud advised chemotherapy</p><p>treatment to Vijaya Lakshmi, who is the mother of the appellant</p><p>– plaintiff and respondents – defendants. After completing check</p><p>up, she was brought back to Guntur, where she took treatment</p><p>under the supervision of one Dr.Krishna Reddy at Manipal</p><p>Hospital, Vijayawada. The serious condition of the mother was</p><p>informed to the appellant – plaintiff and the 2nd respondent – 2nd</p><p>defendant over phone on 16.1.2017 itself, but, there was no</p><p>response. The averments in the counter also show that the suit</p><p>property was gifted to the 1st respondent – 1st defendant by</p><p>executing a registered gift deed and the allegation that the same</p><p>came to be registered when she was in unsound mind is</p><p>absolutely false and incorrect. Counter also denies the appellant</p><p>– plaintiff being in possession and enjoyment of the suit</p><p>property.</p><p>4. In support of the petition, Exs.A1 to A8 were marked, while</p><p>on behalf of respondents – defendants, Exs.B1 and B2 were</p><p>marked. After considering the rival submissions made and the</p><p>judgments cited, the trial Court dismissed the said I.A.</p><p>Challenging the same, the present Civil Miscellaneous Appeal</p><p>came to be filed.</p><p>5. Sri M.Chalapathi Rao, learned counsel for the appellant,</p><p>mainly submits that, the order under challenge is liable to be set</p><p>aside, for the reason that the trial Court did not refer to</p><p>documents filed by the appellant, which are placed as Exs.A1 to </p><p> 4</p><p>A8. According to him, when the condition of Vijaya Lakshmi</p><p>was serious on 16.1.2017 itself, which is evident from the</p><p>counter, the question of she executing a registered gift deed on</p><p>22.2.2017 is highly improbable. Having regard to the above, he</p><p>pleads that, the order under challenge be set aside and the</p><p>matter be remanded for fresh consideration.</p><p>6. Sri N.Sriram Murthy, learned counsel for the</p><p>1st respondent – 1st defendant, would contend that, when suit</p><p>properties are in joint possession, as averred in the plaint and</p><p>as contended by the learned counsel for the appellant, the</p><p>appellant is not entitled for an equitable relief of temporary</p><p>injunction against co-owners. He would further submit that,</p><p>suit is of the year 2017 and as such the question of granting</p><p>injunction after three years would not arise, more so, when the</p><p>trial has commenced and the evidence of P.W.1 is complete. In</p><p>any event, he would plead that, the requirements for granting</p><p>temporary injunction, in a case of this nature, are not fulfilled.</p><p>He took us through the contents of the gift deed, evidence of</p><p>P.W.1 and the judgments in support of his plea to show that, the</p><p>order of the trial court requires no interference.</p><p>7. The point that arises for consideration is, “Whether the</p><p>appellant – plaintiff is entitled for temporary injunction?”</p><p>8. It is to be noted here that, suit is filed for cancellation of a</p><p>registered gift deed and also for partition. The fact that the</p><p>appellant and respondents are siblings is not in dispute. It is </p><p> 5</p><p>also not in dispute that the said Vijaya Lakshmi died on</p><p>2.3.2017. The plea in substance of the appellant is, his mother</p><p>Vijaya Lakshmi never executed the gift deed, dated 22.2.2017, in</p><p>favour of the 1st respondent – 1st defendant, since her condition</p><p>was very serious as on 16.1.2017 itself, which fact was informed</p><p>to him over telephone and the same is evident from the counter.</p><p>9. But, it is to be noted that, though her condition was not</p><p>good in the month of January, 2017, she survived for 40 days</p><p>thereafter. The averments in the counter show that on</p><p>16.1.2017, the 1st respondent – 1st defendant, took her mother</p><p>to Dr.Janardhani and N.Srinivasa Rao, who after verifying the</p><p>scanning report found that her condition is very serious and to</p><p>avoid urinary problem, advised insertion of stunt. Hence, she</p><p>was taken to an Urologist by name Visweswara Rao, who</p><p>arranged a stunt and thereafter, she was taken to her house. By</p><p>this, prima facie, it does not mean that she was not in a position</p><p>to move at all on 16.1.2017. Therefore, at this stage, it may not</p><p>be proper for us to give any finding as to whether she was in a</p><p>position to execute registered gift deed on 22.2.2017. It is for the</p><p>civil court to decide the said issue at the time of trial. But, as</p><p>things stand today, there is a registered gift deed executed on</p><p>22.2.2017 in favour of the 1st respondent – 1st defendant.</p><p>10. It is no doubt true that, there is no specific reference with</p><p>regard to Exs.A2 to A8 in the order, but, there is a reference to</p><p>Ex.A1, which is C.C. of the registered gift deed, dated 22.2.2017.</p><p>But, since the trial has commenced and P.W.1 was examined, </p><p> 6</p><p>the trial Court looked into the evidence of P.W.1 and decided the</p><p>I.A.</p><p>11. Learned counsel for the appellant relied upon the</p><p>judgment of the Apex Court in ‘Seema Arshad Zaheer vs.</p><p>Municipal Corporation of Greater Mumbai1’, where in the</p><p>Apex Court held as follows:</p><p>“Where the lower court acts arbitrarily, capriciously or</p><p>perversely in the exercise of its discretion, the appellate court</p><p>will interfere. Exercise of discretion by granting a temporary</p><p>injunction when there is "no material", or refusing to grant a</p><p>temporary injunction by ignoring the relevant documents</p><p>produced. When we refer to acting on "no material" (similar to</p><p>"no evidence"), we refer not only to cases where there is total</p><p>dearth of material, taken as a whole, is not reasonably capable</p><p>of supporting the exercise of discretion. In this case, there was</p><p>"no material" to make out a prima facie case and therefore, the</p><p>High Court in its appellate jurisdiction, was justified in</p><p>interfering in the matter and vacating the temporary injunction</p><p>granted by the trial court.”</p><p>12. In the above judgment the term used is ‘no material’ for</p><p>exercise of its discretion for granting a temporary injunction.</p><p>The Hon’ble Supreme Court also refers to cases, where there is</p><p>total dearth of material, but also to cases where there is no</p><p>relevant material or where the material, taken as a whole, is not</p><p>reasonably capable of supporting the exercise of discretion.</p><p>13. In the present case, the appellant relied upon eight</p><p>documents i.e., Exs.A.1 to A.8. Ex.A.1 is the certified copy of</p><p>registered gift deed dated 22.02.2017; Ex.A.2 is the certified</p><p>copy of gift deed dated 18.06.2010; Ex.A.3 is the certified copy of</p><p><br /></p><p>1</p><p> (2006) 5 SCC 282 </p><p> 7</p><p>cancellation of gift deed dated 16.03.2012; Ex.A.4 is the aadhar</p><p>card of plaintiff; Ex.A.5 is the gas connection obtained by the</p><p>plaintiff dated 28.04.2000; Ex.A.6 is the letter from Margadarsi</p><p>Finance Corporation to the plaintiff dated 12.09.2017; Ex.A.7 is</p><p>the driving licence of the plaintiff dated 18.10.1986 and Ex.A.8</p><p>is the renewal driving licence of the plaintiff dated 18.10.1986.</p><p>Exs.A.1 to A.3 are only copies of the gift deeds. Ex.A.4 is the</p><p>aadhar card of the plaintiff; Exs.A.7 and A.8 are the copies of</p><p>driving licences of the year 1986; Ex.A.5 is the gas connection is</p><p>of the year 2000 and Ex.A.6, is the letter of Margadarsi Finance</p><p>Corporation is of the year 2017. All these documents do not</p><p>prima facie establish possession of the petitioner with the</p><p>subject property. Even according to the plaint filed by the</p><p>appellant, the appellant is an NRI, working as a Software</p><p>Engineer in US for the last 16 years. He further averred that he</p><p>used to visit India in alternative years to take care of his</p><p>parents. As per the averments of the plaint, after admitting her</p><p>mother in KIMS Hospital, in March, 2016, got her treated and</p><p>then went back to USA. According to the plaint averments,</p><p>plaintiff came to India again on 02.03.2017 i.e., four days prior</p><p>to the death of his mother which was on 06.03.2017. In view of</p><p>the said averments in the plaint, the documents relied upon by</p><p>the plaintiff are not relevant material. Even if they are taken into</p><p>consideration, they are not supporting the case of the appellant</p><p>and hence, the judgment relied upon by the appellant does not</p><p>come to the rescue of the appellant. </p><p> 8</p><p>14. We feel that there is nothing wrong in trial Court looking</p><p>into the evidence of P.W.1 and deciding the issue without</p><p>reference to the documents, more particularly, Aadhar card, gas</p><p>connection, correspondence from Margadarsi finance, renewal of</p><p>driving licence etc., belonging to the appellant – plaintiff.</p><p>Probably all these documents were marked only to show that the</p><p>appellant - plaintiff was residing at the said place. Nonconsideration of these documents, in our view, may not go to the</p><p>root of the matter, while deciding granting of injunction, in view</p><p>of the evidence of P.W.1, who is the plaintiff himself.</p><p>15. In paragraph 13 of the plaint it has been stated that, the</p><p>appellant – plaintiff is in possession of the plaint schedule</p><p>property along with his brother 2nd respondent –</p><p>2nd defendant, since the same is a family property. But, in the</p><p>evidence of P.W.1, it has been elicited that, in the month of</p><p>November, 2019, he came from U.S.A. He stayed in Gowtham</p><p>Lodge, Tenali. His own evidence shows that his father is</p><p>residing in the ground floor portion of the suit property and he</p><p>also admits that his father gave a report against him in II Town</p><p>Police Station, Tenali, alleging that the appellant – plaintiff is</p><p>harassing him. From the above, prima facie, it appears that the</p><p>plea taken that he is in possession of the property may not be</p><p>correct. Apart from that it is also elicited in the crossexamination of P.W.1 that, in the first floor of the property, one</p><p>tenant is residing and the tenant is paying rent to his sister</p><p>through online banking. The evidence also shows that his sister </p><p> 9</p><p>got mutated her name in municipal records in pursuance of</p><p>Ex.A1 gift deed. Apart from that, she got mutated her name in</p><p>electricity service records as well. Therefore, prima facie, the</p><p>evidence of P.W.1 itself shows that he was not in possession of</p><p>the property. Even as per recitals of gift deed – Ex.A1, the</p><p>property stands in the name of the 1st respondent – 1st</p><p>defendant and the possession of the suit schedule property was</p><p>delivered to her by Vijaya Lakshmi.</p><p>16. Apart from all these things it is also to be noted that,</p><p>appellant – plaintiff also sought partition of the property and</p><p>allotment of share to him and other respondents – defendants.</p><p>As per the averments in the plaint, they are in the joint</p><p>possession of the property. Such being the position, the</p><p>question of granting temporary injunction against co-owners</p><p>would not arise.</p><p>17. The issue is no more res integra in view of the judgment of</p><p>this Court in Ranukanta Mullaiah v. Sircilla Rajamma and</p><p>Anr.2 wherein this Court held as under:</p><p> “11. It is not in dispute that the father of the appellant and</p><p>father of the 1st respondent are the sons of Rajaram, and both of</p><p>them have succeeded to the entire suit schedule property, except</p><p>for one item, and almost an equivalent extent of property held by</p><p>the appellant herein. For all practical purposes, the appellant</p><p>wanted to exclude the succession of the respondents herein, to</p><p>the estate of late Durgaiah. For that, he has taken shelter under</p><p>the extension of the 1937 Act, to the Hyderabad State, and the</p><p>allegation that Durgaiah died before the said date. By its very</p><p>nature, a suit for injunction simplicitor does not permit of an</p><p><br /></p><p>2</p><p> 2006 (6) ALD 113 </p><p> 10</p><p>adjudication of such important questions, involving the</p><p>determination of certain jurisdictional facts, interpretation of the</p><p>provisions and expression of view upon the operation of the</p><p>provisions also. Having regard to the relationship of the parties, a</p><p>presumption needs to be drawn that both of them are co-owners,</p><p>if not coparceners, vis-a-vis the suit schedule property, even</p><p>assuming that the plea of the 1st respondent as to prior partition</p><p>has not been proved. That being the case, the 1st respondent</p><p>answered the description of a co-owner, and there was no basis,</p><p>on which the relief of perpetual injunction could have been</p><p>granted in favour of the appellant.”</p><p>18. The Hon’ble Madhya Pradesh High Court in Roop Chand</p><p>v. Indradevi and Ors. 3 held as under :</p><p> “16. The result is that, the trial Court simply assumed merely on</p><p>the basis of the separate living of the co-sharers that there was a</p><p>family settlement between the parties, without any evidence. On</p><p>the other hand, the mortgage-deed on record clearly shows that</p><p>the house was never partitioned nor there was any family</p><p>settlement to give independent portions to the co-sharers for their</p><p>independent business and dealing with. Mere separate living did</p><p>not raise any presumption for family settlement. As earlier</p><p>pointed out, the mortgage-deed is admitted on record and para 8</p><p>of the mortgage-deed clearly demolishes the theory of any family</p><p>settlement. As such, it is established on record that the house</p><p>was never partitioned between the co-sharers. Also there was no</p><p>family settlement for independent dealing with the portions given</p><p>to the four brothers for living, and therefore, the suit for partition</p><p>was maintainable and decree for partition ought to have been</p><p>passed by the trial Court. The injunction granted by the trial</p><p>Court is also uncalled for in view of the fact that no injunction</p><p>could be granted in favour of one of the co-sharers against the</p><p>other, unless there was a finding that the share of one of the cosharers was either partitioned or made separate by family</p><p>arrangement. In this case, there is no proof for either partition or</p><p>family settlement, and therefore, no injunction could be granted</p><p>to any of the co-sharers against others.”</p><p><br /></p><p>3</p><p> AIR 1997 MP 200 </p><p> 11</p><p>19. In Jail Singh & Ors. v. Gurmej Singh 4 the Apex Court</p><p>held as under :</p><p>“7. The principles relating to the inter-se rights and liabilities of</p><p>co- sharers are as follows:</p><p>(l) A co-owner has an interest in the whole property and also</p><p>in every parcel of it.</p><p>(2) Possession of joint property by one co-owner is in the eye</p><p>of law, possession of all even if all but one are actually out of</p><p>possession.</p><p>(3) A mere occupation of a larger portion or even of an entire</p><p>joint property does not necessarily amount to ouster as the</p><p>possession of one is deemed to be on behalf of all.</p><p>(4) The above rule admits of an exception when there is</p><p>ouster of a co-owner by another. But in order to negative the</p><p>presumption of joint possession on behalf of all, on the</p><p>ground of ouster, the possession of a co-owner must not</p><p>only be exclusive but also hostile to the knowledge of the</p><p>other as, when a co-owner openly asserts his own title and</p><p>denies, that of the other.</p><p>(5) Passage of time does not extinguish the right of the coowner who has been out of possession of the joint property</p><p>except in the event of ouster or abandonment.</p><p>(6) Every co-owner has a right to use the joint property in a</p><p>husband like manner not inconsistent with similar rights of</p><p>other co-owners.</p><p>(7) Where a co-owner is in possession of separate parcels</p><p>under an arrangement consented by the other co-owners, it</p><p>is not open to any body to disturb the arrangement without</p><p>the consent of others except by filing a suit for partition.</p><p>8. It is thus evident that when a co-sharer is in exclusive</p><p>possession of some portion of the joint holding he is in possession</p><p>thereof as a co-sharer and is entitled to continue in its possession</p><p>if it is not more than his share till the joint holding is partitioned.</p><p>Vendor cannot sell any property with better rights than himself.</p><p>As a necessary corollary when a co-sharer sells his share in the</p><p>joint holding or any portion thereof and puts the vendee into</p><p>possession of the land in his possession what he transfers is his</p><p><br /></p><p>4</p><p> 2009 (1) SCJ 714 </p><p> 12</p><p>right as a co-sharer in the said land and the right to remain in its</p><p>exclusive possession till the joint holding is partitioned amongst</p><p>all co-sharers.”</p><p>20. In view of the judgments referred to above and having</p><p>regard to answers elicited in the evidence of P.W.1, and the</p><p>averments in the plaint, prima facie, this Court is of the opinion</p><p>that, the appellant – plaintiff is not in possession of the property,</p><p>and as there cannot be an injunction against co-owners,</p><p>the question of granting an injunction as sought for would not</p><p>arise.</p><p>21. Accordingly, the Civil Miscellaneous Appeal is dismissed.</p><p>Since the suit is of the year 2017, and as the examination of</p><p>P.W.1 is over, the trial Court may take steps for disposal of the</p><p>suit as early as possible, uninfluenced by the observations,</p><p>made if any, in the order. No order as to costs.</p><p>_______________________________</p><p>JUSTICE C.PRAVEEN KUMAR</p><p>________________________________________</p><p>JUSTICE KONGARA VIJAYA LAKSHMI</p><p>Date : 07.10.2020</p><p>skmr </p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-14461731486660700552021-05-10T15:50:00.002+05:302021-05-10T15:50:45.670+05:30 ORDER 39 RULE 1 &2 - SPECIFIC PERFROMANCE SUIT - NOT TO DEMOLISH OR TO CONSTRUCT ANY BUILDING PENDING SUIT - admittedly by the time the application was filed, substantial portion of the construction was completed. Even assuming that the entire construction is completed, it will not cause any loss or prejudice to the appellant. As rightly observed by the Court below that in the event the appellant succeeds in the suit, the respondents have to execute a sale deed along with the structures. Moreover, when the respondents have given an undertaking in the counter that they are not going to alienate the schedule property to any third parties and they have no intention to alienate the same, the apprehension of the appellant is absolutely baseless. Therefore, there are no grounds to interfere with the well considered order passed by the Court below. <p>AP HIGHCOURT</p><p>THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI</p><p>CIVIL MISCELLANEOUS APPEAL No.168 of 2020</p><p><span style="background-color: #f3fafe; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">Thumati Venkata Suresh Babu</span></p><p>-VS-</p><p><span style="background-color: #f5f1fc; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">Kavuri Madhava Rao,</span></p><p>ORDER:-</p><p> Challenging the order dated 16.07.2020 passed in I.A.No.146</p><p>of 2020 in O.S.No.31 of 2018 on the file of the Court of X</p><p>Additional District & Special Sessions Judge, Krishna at</p><p>Machilipatnam, this appeal has been filed by the appellant /</p><p>plaintiff.</p><p>2. The appellant, who is the plaintiff has filed the suit in</p><p>O.S.No.31 of 2018 for specific performance of agreement of sale</p><p>dated 05.07.2011.</p><p>3. The case of the appellant / plaintiff is that late Kavuri</p><p>Venkateswara Rao for the purpose of family needs offered to sell</p><p>the suit schedule property to the plaintiff for a sum of Rs.20 lakhs</p><p>and the plaintiff paid an amount of Rs.12 lakhs as advance on the</p><p>same day itself and the balance amount has to be paid on or before</p><p>05.07.2013. On 03.07.2013 the petitioner has paid an amount of</p><p>Rs.6 lakhs, out of Rs.8 lakhs. Later, the father of defendants died</p><p>on 17.03.2014. Subsequently, when the defendants are evading to</p><p>receive the balance of sale consideration, the plaintiff filed the suit.</p><p>4. During pendency of the suit, I.A.No.146 of 2020 is filed</p><p>seeking temporary injunction restraining the 1st respondent from</p><p>demolishing any part of the plaint schedule building or raising any</p><p>new construction in the schedule property pending disposal of the</p><p>suit. The Court below after hearing both parties, dismissed the</p><p>application on the ground that admittedly as on the date of filing of</p><p>the petition substantial portion of the construction is completed, </p><p>2</p><p>without expressing any merits of the rival parties in the suit,</p><p>considering the conduct of the petitioner in approaching the Court</p><p>almost five years from the date of endorsement and seven years</p><p>from the date of agreement of sale, there is no balance of</p><p>convenience in favour of the petitioner. The Court below has also</p><p>observed that if the 1st respondent continues to make construction,</p><p>in the event of succeeding in the suit, the petitioner is entitled for a</p><p>registered sale deed in respect of suit schedule property with</p><p>possession including any constructions which are made pending</p><p>disposal of the suit.</p><p>5. Learned counsel for the appellant submits that if the</p><p>respondents are permitted to raise the construction, it would cause</p><p>irreparable loss to the appellant and there is every possibility of</p><p>alienating and creating third party interest. Further, it is stated</p><p>that the Court below has failed to appreciate that there is prima</p><p>facie case and balance of convenience in favour of the appellant.</p><p>6. Learned counsel for the 1st respondent would submit that</p><p>the agreement of sale is of the year 2011 and in fact by the time of</p><p>filing the application substantial portion of the construction is</p><p>completed. He submit that it is specifically averred in the counter</p><p>filed in I.A. before the Court below that the respondents never</p><p>made any attempt to alienate the plaint schedule property pending</p><p>disposal of the suit and further they undertook that they will not</p><p>alienate the schedule property or enter into any agreement with</p><p>third parties in future till the disposal of the suit. Learned counsel</p><p>for the 1st respondent would submit that the construction is made</p><p>after obtaining necessary permission from the Municipality. </p><p>3</p><p>7. Having heard the learned counsel for the appellant and</p><p>learned counsel for the 1st respondent, admittedly by the time the</p><p>application was filed, substantial portion of the construction was</p><p>completed. Even assuming that the entire construction is</p><p>completed, it will not cause any loss or prejudice to the appellant.</p><p>As rightly observed by the Court below that in the event the</p><p>appellant succeeds in the suit, the respondents have to execute a</p><p>sale deed along with the structures. Moreover, when the</p><p>respondents have given an undertaking in the counter that they</p><p>are not going to alienate the schedule property to any third parties</p><p>and they have no intention to alienate the same, the apprehension</p><p>of the appellant is absolutely baseless. Therefore, there are no</p><p>grounds to interfere with the well considered order passed by the</p><p>Court below.</p><p>8. In the result, the Civil Miscellaneous Appeal is dismissed.</p><p>No order as to costs.</p><p> As a sequel, pending miscellaneous petitions, if any, shall</p><p>stand closed.</p><p>___________________________________</p><p>JUSTICE LALITHA KANNEGANTI</p><p><br /></p><p>21st October, 2020</p><p>PVD</p><p><br /></p><p> </p><p>4</p><p>THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI</p><p>CIVIL MISCELLANEOUS APPEAL No.168 of 2020</p><p>21st October, 2020</p><p>PVD </p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-72312941756055187052021-05-10T15:37:00.001+05:302021-05-10T15:37:17.009+05:300RDER 39 RULE 1 & 2 - PARTITION SUIT - NOT TO ALIENATE PENDING SUIT = Defendants 1, 4 and 5 who are the appellants herein filed counter, wherein they stated that pursuant to the settlement deed dated 12.09.1994, they executed a number of 6 documents and entered into various transactions. It is not in dispute that the appellant herein did not get the settlement deed dated 12.09.1994 marked. In fact, all the documents, on which the appellants herein sought to rely upon, are the documents emanated on the basis of the alleged settlement deed dated 12.09.1994. In fact, the 1st respondent herein is strongly disputing the genuineness of the said settlement deed. The learned District Judge, only after taking into consideration all the contentions advanced by both the parties and taking into consideration the non-marking of the settlement deed dated 12.09.1994 and in order to avoid further complications in the matter, granted the order of injunction in favour of the 1st respondent herein. It is a settled proposition of law that the relief of injunction is a discretionary and equitable relief. A perusal of the order passed by the trial Court shows that the learned I Additional District Judge has assigned cogent and convincing reasons in the impugned order. 9. Having regard to the apprehension expressed by the learned senior counsel, Sri P.Veera Reddy, that the 1st respondent-plaintiff is taking steps to get the revenue records mutated taking advantage of the injunction orders, this Court is inclined to modify the injunction order as an order of status quo in all respects with regard to the subject property. <p>AP HIGH COURT</p><p>THE HON’BLE SRI JUSTICE A.V.SESHA SAI</p><p>AND</p><p>THE HON’BLE MS. JUSTICE J.UMA DEVI</p><p>CIVIL MISCELLANEOUS APPEAL No.235 OF 2020</p><p><span style="background-color: #f3fafe; font-family: Arial, Helvetica, sans-serif; font-size: 12px;"> </span><span style="background-color: #f3fafe; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">Shamshunnisa Begum</span></p><p>-VS-</p><p><span style="background-color: #f5f1fc; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">Khamrunnisa Begum,</span></p><p>JUDGMENT: (per AVSS,J)</p><p>Defendants 1, 4 and 5 in O.S. No.20 of 2019 on the file of</p><p>the Court of I Additional District Judge, Kurnool, are the</p><p>appellants in the present Civil Miscellaneous Appeal, preferred</p><p>under Order XLIII Rule 1 of the Code of Civil Procedure, 1908</p><p>(C.P.C.). This appeal challenges the order dated 03.11.2020</p><p>passed by the said Court in I.A. No.166 of 2019 in O.S. No.20 of</p><p>2019. The 1st respondent herein instituted the said suit against</p><p>the appellants and respondents 2 and 3 herein for partition of</p><p>the plaint schedule property and for allotment of 1/8th share to</p><p>her and for mesne profits. Along with the suit, the 1st</p><p>respondent herein filed I.A. No.166 of 2019 under the provisions</p><p>of Order XXXIX Rules 1 and 2 C.P.C., praying the trial Court to</p><p>grant ad interim injunction to restrain the defendants or</p><p>anybody, claiming through them from creating third party</p><p>interest, like sale, mortgage, gift, relinquishment and such other</p><p>transactions in respect of petition schedule property.</p><p>Respondents 1, 4 and 5 in the interlocutory application, who are</p><p>the appellants herein resisted the said application by filing a</p><p>counter. The learned I Additional District Judge, Kurnool, by </p><p> 2</p><p>way of an order dated 03.11.2020, allowed the injunction</p><p>application, granting ad interim injunction, restraining the</p><p>defendants from alienating the petition schedule property</p><p>pending disposal of the suit. This appeal calls in question the</p><p>said order passed by the learned I Additional District Judge,</p><p>granting ad interim injunction in favour of the 1st respondent</p><p>herein.</p><p> 2. Heard Sri P.Veera Reddy, learned senior counsel</p><p>representing Sri M.Chinnappa Reddy, learned counsel for the</p><p>appellants and Sri G.Sravan Kumar, learned counsel for the 1st</p><p>respondent, apart from perusing the material available on</p><p>record.</p><p> 3. Learned senior counsel maintains that the questioned</p><p>order is highly erroneous, contrary to law and opposed to the</p><p>very spirit and object of the provisions of Order XXXIX Rules 1</p><p>and 2 C.P.C. It is further contended that in the absence of</p><p>necessary ingredients of Order XXXIX Rules 1 and 2 C.P.C., the</p><p>leaned I Additional District Judge grossly erred in granting</p><p>equitable relief of injunction. It is further submitted that in view</p><p>of the family arrangement dated 11.09.1994 entered into among</p><p>the family members, the very suit instituted by the 1st</p><p>respondent herein is not maintainable. It is further contended</p><p>by the learned counsel that though the respondents-defendants </p><p> 3</p><p>produced voluminous evidence, in support of their possession</p><p>and the transactions entered into subsequent to the family</p><p>settlement, the learned I Additional District Judge failed to take</p><p>the same into consideration. It is further contended that the</p><p>main suit is barred by limitation and the interest of the 1st</p><p>respondent, if any, is well protected by Section 52 of the</p><p>Transfer of Property Act, 1882. Learned senior counsel further</p><p>submits that taking advantage of the injunction granted by the</p><p>learned trial Court, the 1st respondent-plaintiff is actively</p><p>contemplating to approach the revenue authorities to get the</p><p>entries changed in the revenue records and if the same is</p><p>permitted, the appellants herein and their successors will have</p><p>to suffer irreparable loss and hardship. It is also submitted by</p><p>the learned senior counsel that for having slept over the matter</p><p>from 1994, the 1st respondent herein instituted the suit in the</p><p>year 2019 and there are no bona fides on the part of the</p><p>plaintiff.</p><p><br /></p><p> 4. On the contrary, it is contended by Sri G.Sravan</p><p>Kumar, learned counsel for the 1st respondent that there is</p><p>absolutely no infirmity nor there exists any error in the order</p><p>passed by the learned District Judge and in the absence of the</p><p>same, the discretionary relief granted by the learned Judge is</p><p>not amenable for any interference under Order XLIII Rule 1 </p><p> 4</p><p>C.P.C. It is further contended by the learned counsel that since</p><p>all the issues raised by the appellants herein were thoroughly</p><p>answered by the learned District Judge in the impugned order,</p><p>the present appeal is liable to be dismissed. It is further</p><p>submitted by the learned counsel that in order to avoid</p><p>multiplicity of litigation, learned District Judge granted</p><p>discretionary relief of injunction, as such, the same does not</p><p>warrant any interference of this Court.</p><p> 5. In the above background, now the issue that falls for</p><p>consideration of this Court in the present Civil Miscellaneous</p><p>Appeal is “Whether the order passed by the learned District</p><p>Judge is sustainable and tenable and whether the same</p><p>warrants any interference of this Court?”</p><p> 6. Appellants and the respondents herein are the</p><p>children of late Sri Mohammad Ghouse and late Smt. S.Ghousia</p><p>Bee of Kurnool town, appellant No.1 and respondents 1 to 3 are</p><p>their daughters and appellants 2 and 3 are the sons of Sri</p><p>Mohammad Ghouse and Smt. S.Ghousia Bee.</p><p> 7. The information available on record discloses, in clear</p><p>and vivid terms, that there is absolutely no controversy with</p><p>regard to the reality that Smt. Ghousia Bee owned the subject</p><p>property. Smt. Ghousia Bee died intestate on 26.01.1990, </p><p> 5</p><p>leaving behind her husband and the parties to the present</p><p>litigation. Sri Mohammad Ghouse also passed away on</p><p>06.06.1996. According to the learned counsel for the 1st</p><p>respondent-plaintiff, appellants 2 and 3 used to apportion total</p><p>income derived from all the properties to all the shares including</p><p>the plaintiff upto the end of 2017 and they dodged to give her</p><p>share of income at the end of 2018 and when she insisted for a</p><p>share in the income, the defendants 4 and 5 who are the</p><p>appellants 2 and 3 herein postponed the same on some pretext</p><p>or the other. The plaintiff also pleaded that in the last week of</p><p>March, 2019, appellants 2 and 3 herein approached her for her</p><p>signature on some papers to apply for family members certificate</p><p>in favour of their mother to sell the property and for such course</p><p>of action, the plaintiff refused and demanded her 1/8th share in</p><p>the property. It is her further case that since the appellants 2</p><p>and 3 refused to partition the property, she instituted the</p><p>instant suit. As stated supra, along with the main suit, the 1st</p><p>respondent herein filed the instant application under Order</p><p>XXXIX Rules 1 and 2 C.P.C. to restrain the defendants from</p><p>alienating the properties.</p><p> 8. Defendants 1, 4 and 5 who are the appellants herein</p><p>filed counter, wherein they stated that pursuant to the</p><p>settlement deed dated 12.09.1994, they executed a number of </p><p> 6</p><p>documents and entered into various transactions. It is not in</p><p>dispute that the appellant herein did not get the settlement deed</p><p>dated 12.09.1994 marked. In fact, all the documents, on which</p><p>the appellants herein sought to rely upon, are the documents</p><p>emanated on the basis of the alleged settlement deed dated</p><p>12.09.1994. In fact, the 1st respondent herein is strongly</p><p>disputing the genuineness of the said settlement deed. The</p><p>learned District Judge, only after taking into consideration all</p><p>the contentions advanced by both the parties and taking into</p><p>consideration the non-marking of the settlement deed dated</p><p>12.09.1994 and in order to avoid further complications in the</p><p>matter, granted the order of injunction in favour of the 1st</p><p>respondent herein. It is a settled proposition of law that the</p><p>relief of injunction is a discretionary and equitable relief. A</p><p>perusal of the order passed by the trial Court shows that the</p><p>learned I Additional District Judge has assigned cogent and</p><p>convincing reasons in the impugned order.</p><p> 9. Having regard to the apprehension expressed by the</p><p>learned senior counsel, Sri P.Veera Reddy, that the 1st</p><p>respondent-plaintiff is taking steps to get the revenue records</p><p>mutated taking advantage of the injunction orders, this Court is</p><p>inclined to modify the injunction order as an order of status quo</p><p>in all respects with regard to the subject property. It is also </p><p> 7</p><p>made clear that the Original Suit shall be disposed of without</p><p>being influenced by any of the observations made by the learned</p><p>I Additional District Judge in the impugned order or by this</p><p>Court in the present order.</p><p> 10. With the above modification, this appeal is disposed</p><p>of. There shall no order as to costs of this appeal.</p><p>Miscellaneous Petitions pending, if any, in this case shall</p><p>stand closed.</p><p><br /></p><p> __________________________</p><p> JUSTICE A.V.SESHA SAI</p><p><br /></p><p> ________________________</p><p> JUSTICE J. UMA DEVI</p><p>25.03.2021</p><p>siva </p><p> 8</p><p>THE HON’BLE SRI JUSTICE A.V.SESHA SAI</p><p>AND</p><p>THE HON’BLE MS. JUSTICE J.UMA DEVI</p><p>CIVIL MISCELLANEOUS APPEAL No.235 OF 2020</p><p>Date: 25.03.2021</p><p>siva </p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-83548650479912356362021-05-10T15:21:00.005+05:302021-05-10T15:21:50.467+05:30Section 9-A applies when any entertainment shows escaped assessment of tax under Section 4 or 4-A. In such an event, the prescribed authority shall assess to the best of its judgment, the tax due on such entertainment shown under section 4 or section 4A after making such enquiry as it considers necessary within a limited 6 period. Section 9-A does not apply as no assessment was done previously and the appellant is not assessed under Section 4 or Section 4(1-A) or Section 4A earlier. If any entertainment tax was assessed under section 4 or section 4(1-A), and if tax escaped the assessment in such past assessment, the invocation of section 9-A comes into picture so as to assess the escaped tax. Since, the proceedings of the Entertainment Tax Officer are assessed for the first assessment, the provisions of Section 9A have no relevance. In the instance case, enquiry, as required under Section 9, has been carried out by giving a notice, but no objections were filed. Therefore, it cannot be said there was any illegality in invoking Section 9, more so, when there is escaped assessment. <p><br /></p><p>AP HIGH COURT </p><p>THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR</p><p>AND</p><p>THE HON’BLE SRI JUSTICE BATTU DEVANAND</p><p>C.M.A. Nos.591, 594, 596, 598, 599, 600,</p><p>603, 604, 609, 590, 607 and 608 of 2019</p><p><span style="background-color: #f3fafe; font-family: Arial, Helvetica, sans-serif; font-size: 12px;"> DEVATHA MAHAL</span></p><p><span style="background-color: #f3fafe; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">-VS-</span></p><span style="background-color: #f5f1fc; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">STATE OF ANDHRA PRADESH</span><br style="font-family: Arial, Helvetica, sans-serif; font-size: 12px;" /><br style="font-family: Arial, Helvetica, sans-serif; font-size: 12px;" /><p><span style="background-color: #f5f1fc; font-family: Arial, Helvetica, sans-serif; font-size: 12px;"> Advocate - GP FOR COMMERCIAL TAX (AP)</span></p><p>COMMON JUDGMENT : (per the Hon’ble Sri Justice C.Praveen Kumar)</p><p>1. The present appeals are filed under Section 9E of A.P.</p><p>Entertainment Tax Act, 1939 (for short, ‘the Act’) questioning the</p><p>orders dated 26.09.2018 passed by the Appellate Deputy</p><p>Commissioner, Tirupati, in ADC Order Nos.3634/28-09-2018,</p><p>3634/28-09-2018, 3633/28-09-2018, 3632/28-09-2018,</p><p>3635/28-09-2018, 3632/28-09-2018, 3634/28-09-2018,</p><p>3635/28-09-2018, 3635/28-09-2018, 3633/28-09-2018,</p><p>3633/28-09-2018 and 3632/28-09-2018 respectively.</p><p>2. The facts in issue are as under :</p><p> The appellant theatres - Kavali management, have</p><p>screened films and filed weekly returns in Form-V along with</p><p>Daily Collection Reports under Andhra Pradesh Entertainment</p><p>Tax Act, 1939. The details of which are reflected in the order. It</p><p>is said that exhibitors have exhibited high budget/dubbing films</p><p>in the guise of low budget films and thereby evaded</p><p>entertainment tax to the Government, violating Section 4(1-A) of</p><p>Andhra Pradesh Entertainment Tax Act and conditions of</p><p>G.O.Ms.No.604 (Revenue (CT-IV) Department, dated 22.4.2008.</p><p>After careful consideration of the objections filed by the</p><p>managers of the theaters, Form-A was issued directing to pay </p><p>2</p><p>the balance of tax after deducting the tax paid. Orders passed</p><p>by the Entertainment Tax Officer, Kavali, came to be challenged</p><p>before the Appellate Deputy Commissioner, who, after going</p><p>through the facts in issue and also considering the objection</p><p>raised with regard to the applicability of Section 4 vis-à-vis</p><p>Section 9, dismissed the appeals. Challenging the same, these</p><p>appeals are filed under Section 9E of the Act.</p><p>3. The main ground urged by the learned counsel for the</p><p>appellants is that in the facts and circumstances of the case,</p><p>entertaining an application under Section 4 of the Act without</p><p>invoking Section 9-A of the Act is illegal and incorrect. The</p><p>second ground urged by the learned counsel for the appellant is</p><p>that the appellants herein are entitled to certain exemptions</p><p>under the G.O., which were not properly brought to the notice of</p><p>the authorities. These two objections were dealt with by the</p><p>appellate authority and negatived the same.</p><p>4. In so far as entitlement to avail concessions or exemptions</p><p>under the entertainment tax, it is to be noted that though</p><p>notices were given to the appellants on four occasions on</p><p>13.7.2015, 13.6.2016, re-assessment show cause notice on</p><p>10.5.2017 and final notice on 12.6.2017, the appellants herein</p><p>failed to file objections. The material on record show that if the</p><p>appellants intend to differ with the proposal, they have to follow</p><p>the conditions laid down in G.O.Ms.No.604, dated 22.4.2008.</p><p>They have to file documentary evidence of certified copy of the</p><p>feature film/low budget film along with certified copy of </p><p>3</p><p>certification obtained from A.P. Film Development Corporation to</p><p>the effect the feature film/low budget film is produced in the</p><p>State of Andhra Pradesh. The material indicate that the</p><p>exhibitors should inform the Entertainment Tax Officer in</p><p>advance, in writing, the particulars of screening the feature</p><p>film/low budget film produced in A.P. in the application form</p><p>represented in G.O.Ms.No.604, dated 22.4.2008. It is clear from</p><p>the record that appellants neither filed any objections nor filed</p><p>any documentary evidence to contradict the movies screened as</p><p>per the UFO, Chennai, even after receiving the detailed date</p><p>wise/movie wise information furnished by the Entertainment</p><p>Tax Officer, Kavali. Therefore, the argument of the learned</p><p>Government Pleader that appellants are not entitled for any</p><p>exemptions cannot be brushed aside.</p><p>5. At the same time, learned counsel for appellants would</p><p>contend that if a reasonable opportunity is given to appellants,</p><p>they will file all the objections and documentary evidence</p><p>contradicting the movies screened as per the UFO, Chennai.</p><p>6. In so far as the applicability of Section 4 and Section 9 of</p><p>the Act is concerned, it will be useful to refer to Section 4(1-A)</p><p>and Section 9-A of the Act, which are as under :</p><p>Section 4(1-A) : There shall be levied and paid to the state</p><p>government a tax on the gross collection capacity on every show</p><p>(hereinafter referred to as the Entertainments Tax) in respect of</p><p>entertainments held in the theatres specified in column (2) of the</p><p>table below and located in the local areas specified in the</p><p>corresponding entry in column (1) of the said table, calculated at </p><p>4</p><p>the rates specified in the corresponding entry in column (3)</p><p>thereof for the number of shows prescribed therein for every week.</p><p>Local Authority Theatre Rate of tax on the</p><p>gross collection</p><p>capacity per show</p><p>(1) (2) (3)</p><p>a) First Grade</p><p> Municipality</p><p>All categories of</p><p>theatres</p><p>10% of the gross</p><p>collection capacity</p><p>per show multiplied</p><p>by 21.</p><p>b) Second Grade</p><p> Municipality</p><p>All categories of</p><p>theatres</p><p>9% of the gross</p><p>collection capacity</p><p>per show multiplied</p><p>by 21</p><p>c) Third Grade</p><p> Municipality</p><p>All categories of</p><p>theatres</p><p>8% of the gross</p><p>collection capacity</p><p>per show multiplied</p><p>by 17</p><p>d)Gram Panchayats</p><p>townships and any</p><p>local authorities</p><p><br /></p><p>(1) with a</p><p>population of</p><p>15,000 and above</p><p>i) permanent and</p><p>semi-permanent</p><p>ii) Touring and</p><p>Temporary</p><p>7% of the gross</p><p>collection capacity</p><p>per show multiplied</p><p>by 14</p><p>7% of the gross</p><p>collection capacity</p><p>per show multiplied</p><p>by 10.</p><p>(2) with a</p><p>population of 7,500</p><p>and above but</p><p>below of 15,000.</p><p>i) permanent and</p><p>semi-permanent</p><p>ii) Touring and</p><p>Temporary</p><p>6% of the gross</p><p>collection capacity</p><p>per show multiplied</p><p>by 14.</p><p>6% of the gross</p><p>collection capacity</p><p>per show multiplied</p><p>by 10.</p><p>(3) with a</p><p>population of less</p><p>than 7,500</p><p>i) permanent and</p><p>semi-permanent</p><p>ii) Touring and</p><p>Temporary</p><p>5% of the gross</p><p>collection capacity</p><p>per show multiplied</p><p>by 14.</p><p>5% of the gross</p><p>collection capacity</p><p>per show multiplied</p><p>by 7.</p><p> </p><p>5</p><p>“Section 9A : Payment for Admission, etc., escaping</p><p>assessments :</p><p> “(1) Where, for any reason any entertainment show has</p><p>escaped assessment to tax under section 4 or section 4A, the</p><p>prescribed authority may, subject to the provisions of sub-section</p><p>(3) and at any time within such period as may be prescribed,</p><p>assess to the best of its judgment the tax due on such</p><p>entertainment show under section 4 or section 4A, as the case</p><p>may be, after making such enquiry as it considers necessary and</p><p>after giving the proprietor a reasonable opportunity to show cause</p><p>against such assessment</p><p> (2) Where, for any reason any entertainment show has</p><p>been assessed at a rate lower than the rate at which it is</p><p>assessable under section 4 or Section 4-A, as the case may be,</p><p>the prescribed authority may, subject to the provisions of subsection (3) and at any time within such period as may be</p><p>prescribed, re-assess the tax due on such payment or</p><p>entertainment show under section 4 or Section 4-A as the case</p><p>may be, after making such enquiry as it may consider necessary</p><p>and after giving the proprietor a reasonable opportunity to show</p><p>cause against such re-assessment.</p><p> (3) When making an assessment to the best of Judgment</p><p>under sub-section (1) or sub-section (2) the prescribed authority</p><p>may also direct the proprietor to pay in addition to the tax</p><p>assessed, a penalty as specified in sub-section (4).</p><p> (4) The penalty leviable under sub-section (3) shall,--</p><p> (a) in a case where the prescribed authority is satisfied</p><p>that the failure of the proprietor to disclose the whole or part of</p><p>the particulars correctly or to submit the return before the</p><p>prescribed date, was willful, not exceed one and half times the</p><p>entertainments tax or the tax on entertainment shows due;</p><p> (b) in a case where such failure was not wilful, not exceed</p><p>on half of such tax :</p><p> Provided that where such failure occurred due to a</p><p>bonafide mistake on the part of the proprietor, no such penalty</p><p>shall be levied.</p><p> Provided further that no penalty under this sub-section</p><p>shall be imposed unless the proprietor affected has had a</p><p>reasonable opportunity of showing cause against such</p><p>imposition.”</p><p><br /></p><p>7. A reading of the two provisions makes it clear that Section</p><p>9-A applies when any entertainment shows escaped assessment</p><p>of tax under Section 4 or 4-A. In such an event, the prescribed</p><p>authority shall assess to the best of its judgment, the tax due on</p><p>such entertainment shown under section 4 or section 4A after</p><p>making such enquiry as it considers necessary within a limited </p><p>6</p><p>period. Section 9-A does not apply as no assessment was done</p><p>previously and the appellant is not assessed under Section 4 or</p><p>Section 4(1-A) or Section 4A earlier. If any entertainment tax</p><p>was assessed under section 4 or section 4(1-A), and if tax</p><p>escaped the assessment in such past assessment, the invocation</p><p>of section 9-A comes into picture so as to assess the escaped tax.</p><p>Since, the proceedings of the Entertainment Tax Officer are</p><p>assessed for the first assessment, the provisions of Section 9A</p><p>have no relevance. In the instance case, enquiry, as required</p><p>under Section 9, has been carried out by giving a notice, but no</p><p>objections were filed. Therefore, it cannot be said there was any</p><p>illegality in invoking Section 9, more so, when there is escaped</p><p>assessment.</p><p>8. The main plea of the learned counsel for appellants</p><p>appears to be that if an opportunity is given to appellants, they</p><p>would fulfil the requirements by claiming exemptions or</p><p>concessions as per the said G.O.</p><p>9. The same is strongly opposed by the learned Government</p><p>Pleader for Commercial Taxes contending that enough</p><p>opportunities have been given to appellants, but, in spite of the</p><p>same, they never utilized. She also contends that there is any</p><p>amount of doubt as to whether really the appellants are entitled</p><p>to any exemptions or concessions as urged by them. According</p><p>to her, even if such exemptions or concessions are given, still</p><p>appellants would be liable to pay certain amounts. </p><p>7</p><p>10. A perusal of the orders impugned shows that it is not as if</p><p>the appellants have not paid any money. They have paid some</p><p>amount which was adjusted and thereafter the amount due is</p><p>reflected in the orders. Having regard to the facts and</p><p>circumstances of the case and with a view to give the appellants</p><p>an opportunity, we feel that it is a fit case where the matter can</p><p>be remanded back directing the appellants to fulfil the</p><p>requirements as pleaded here on certain terms and conditions</p><p>within a period of four weeks from today. In which event, the</p><p>primary authority shall pass appropriate orders within a period</p><p>of four weeks thereafter.</p><p>11. As the orders of the appellate authority indicate that the</p><p>appellants have paid some amounts out of disputed amounts,</p><p>and with a view to give an opportunity to appellants (only to the</p><p>extent of producing material for availing concessions or</p><p>exemptions) the matter shall be remanded back, setting aside the</p><p>orders under challenge, subject to appellants paying ½ (half) of</p><p>the demanded (disputed) amount, which would be inclusive of</p><p>the disputed amount already paid. Further, the appellants</p><p>shall comply with the order within four weeks from today, in</p><p>which event the primary authority shall pass orders in</p><p>accordance with law within four weeks thereafter. If the</p><p>appellants fail to deposit the amount within four weeks, as</p><p>directed above, the authorities shall proceed further basing on</p><p>the earlier orders passed. </p><p>8</p><p>12. With the above directions, the Appeals are allowed. No</p><p>orders as to costs.</p><p> Consequently, interlocutory applications pending, if any,</p><p>shall stand closed.</p><p>______________________________</p><p>JUSTICE C.PRAVEEN KUMAR</p><p>_____________________________</p><p>JUSTICE BATTU DEVANAND</p><p>Date : 24.03.2020</p><p>skmr </p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-81059659642673977902021-04-24T21:29:00.012+05:302021-04-24T21:31:48.133+05:30while the amendment prayer allowed by the trial Court , the trial Court is to afford an opportunityto both parties to adduce evidence both oral and documentary in connection with the future mesne profits and after hearing argumentsof both sides, pass an appropriate order in final decree petition.<p><span style="color: red;">while the amendment prayer allowed by the trial Court , the trial Court is to afford an opportunityto both parties to adduce evidence both oral and documentary in connection with the future mesne profits and after hearing argumentsof both sides, pass an appropriate order in final decree petition.</span></p><p>AP HIGH COURT</p><p>HON'BLE SRI JUSTICE U. DURGA PRASAD RAO</p><p>CIVIL REVISION PETITION No.333 of 2021</p><p><span style="background-color: #f3fafe; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">Sadhu Annapoornamma</span></p><p>-vs-</p><p><span style="background-color: #f5f1fc; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">Pelluri Venkata Hanumanth Krishna Murthy Sarma</span></p><p>ORDER:</p><p>The challenge in the Civil Revision Petition is to the order</p><p>dated 09.03.2021 in I.A.No.168 of 2021 in I.A.No.565 of 2011 in</p><p>O.S.No.30 of 2002 on the file of the II Additional District Judge,</p><p>Vijayawada, allowing I.A.No.168 of 2021 and amending the prayer</p><p>and incorporating the words ‘future mesne profits’ in the place of</p><p>‘past mesne profits’ wherever they occur in I.A.No.565 of 2011.</p><p>2. Heard learned counsel for the Petitioners Sri Gudiseva</p><p>Narasimha Rao and learned counsel for the respondent Nos. 1 and 2</p><p>Sri S. Satyanarayana Murthy.</p><p>3. The main submissions of learned counsel for the petitioners is</p><p>that the petitioners have no objection for allowing I.A.No.168 of 2021</p><p>and amending the prayer incorporating the words ‘future mesne</p><p>profits’ in the place of ‘past mesne profits’. However, the petitioners’</p><p>submission is that since in I.A.No.565 of 2011 prayer was made in</p><p>respect of past mesne profits, taking the prayer as such, evidence was</p><p>adduced with reference to the past mesne profits only and no evidence</p><p>was adduced in connection with the future mesne profits, because</p><p>there was no prayer in that regard. Learned counsel would thus</p><p>request that the order in I.A.No.168 of 2021 may be modified and</p><p>while allowing the amendment, the trial Court may be directed to</p><p>afford an opportunity to both parties to adduce evidence with </p><p>2</p><p>UDPR,J</p><p>CRP No.333 of 2021</p><p>reference to the future mesne profits also for effective disposal of the</p><p>matter.</p><p>4. Learned counsel for the respondents Sri S. Satyanarayana</p><p>Murthy reported no objection.</p><p>5. Accordingly, this Civil Revision Petition is partly allowed and</p><p>the order in I.A.No.168 of 2021 passed by the trial Court is modified</p><p>to the effect that while the amendment prayer allowed by the trial</p><p>Court is maintained, the trial Court is directed to afford an opportunity</p><p>to both parties to adduce evidence both oral and documentary in</p><p>connection with the future mesne profits and after hearing arguments</p><p>of both sides, pass an appropriate order in final decree petition. No</p><p>costs.</p><p>As a sequel, interlocutory applications, if any pending, shall</p><p>stand closed.</p><p>U. DURGA PRASAD RAO, J</p><p>20th March, 2021</p><p>krk </p><p>3</p><p>UDPR,J</p><p>CRP No.333 of 2021</p><p>HON'BLE SRI JUSTICE U. DURGA PRASAD RAO</p><p>CIVIL REVISION PETITION No.333 of 2021</p><p> 20th March, 2021</p><p>krk </p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-23528385782864308412021-04-13T08:05:00.002+05:302021-04-13T08:05:38.148+05:30<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://lh3.googleusercontent.com/-cvtSl6QXp24/YHUDMBG9atI/AAAAAAAAVH4/zlKABaLSDRg66D5UELsF0EhnvtFSULUpwCLcBGAsYHQ/image.png" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img alt="" data-original-height="174" data-original-width="290" height="192" src="https://lh3.googleusercontent.com/-cvtSl6QXp24/YHUDMBG9atI/AAAAAAAAVH4/zlKABaLSDRg66D5UELsF0EhnvtFSULUpwCLcBGAsYHQ/image.png" width="320" /></a></div><p><br /></p><p><span style="font-size: x-large;">Wishing you all</span></p><p><span style="font-size: x-large;">a happy & prosperous </span></p><p><span style="font-size: x-large;">Plava nama UGADI new year </span></p><p><span style="font-size: x-large;">God bless you all</span></p><p><span style="font-size: x-large;">with great health & wealth & prosperity</span></p><p><span style="font-size: x-large;"> with regards</span></p><p><span style="font-size: x-large;"> advocatemmmohan</span></p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-12543585042505981062021-03-27T10:04:00.003+05:302021-03-27T10:04:35.751+05:30INJUNCTION SUIT - PLAINTIFF NOT ONLY PROVE HIS POSSESSION BUT ALSO PROVE THE ALLEGED INTERFERANCE BY THE DEFENDANTS It is well settled law and principle that when a person came to the court and seek a relief of permanent injunction, he has to establish the possession over the plaint schedule property as on the 3 date of filing of the suit and also interference of opposite party into his peaceful possession and enjoyment, but though D5, who is plaintiff in OS 130/08 filed suit for seeking a relief of permanent injunction against plaintiff herein, who is D3 in OS 130/08 failed to prove his possession over plaint schedule property as well as alleged interference of plaintiff and her children. “37. As per the version of D5 (Plaintiff in OS 130/2008) while he is enjoying the property, plaintiff 2 and her children who are D1 to D3 in OS130/08, along with 5 others, came to the suit schedule property on 23.02.08 at about 6:00 p.m., without any manner of right, title, possession try to occupy the same and at the intervention of one Pothuraju and others, D5 (Plaintiff in OS 130/2008) could resist the illegal acts committed by the plaintiff and her children, but to prove the said interference of plaintiff and her children, D5(Plaintiff in OS 130/2008) neither choose to adduce any corroborative oral evidence nor marked any supportive document. If really plaintiff and her children (D1 to D3 in OS 130/2008) committed the alleged illegal acts against D5 and the same was resisted with the help of one Pothuraju and others, what prevented D5(Plaintiff in OS 130/2008) to get examine said Pothuraju or any others person who allegedly resisted plaintiff and her children (D1 to D3 in OS 130/2008) on his behalf to prove the alleged interference of plaintiff and her children. But no positive evidence is placed by D5(Plaintiff in OS 130/2008) to establish the alleged inference of plaintiff and her children (who are D1 to D3 in OS 130/2008). In absence of any positive evidence, the version of D5(Plaintiff in OS 130/2008) that while he is enjoying the property, plaintiff and her children (who are D1 to D3 in OS 130/2008) came to schedule property and interfered into his possession of property is not tenable. Further more once D5(Plaintiff in OS 130/2008) failed to establish his possession over the plaint schedule property, the question of interfere does not arise.<p><span style="color: #990000;">INJUNCTION SUIT - PLAINTIFF NOT ONLY PROVE HIS POSSESSION BUT ALSO PROVE THE ALLEGED INTERFERANCE BY THE DEFENDANTS</span></p><p><span style="color: #990000;">It is well settled law and principle that when a
person came to the court and seek a relief of
permanent injunction, he has to establish the
possession over the plaint schedule property as on the
3
date of filing of the suit and also interference of
opposite party into his peaceful possession and
enjoyment, but though D5, who is plaintiff in OS
130/08 filed suit for seeking a relief of permanent
injunction against plaintiff herein, who is D3 in OS
130/08 failed to prove his possession over plaint
schedule property as well as alleged interference of
plaintiff and her children.</span></p><p><span style="color: #990000;">“37. As per the version of D5 (Plaintiff in OS
130/2008) while he is enjoying the property, plaintiff
2
and her children who are D1 to D3 in OS130/08,
along with 5 others, came to the suit schedule
property on 23.02.08 at about 6:00 p.m., without any
manner of right, title, possession try to occupy the
same and at the intervention of one Pothuraju and
others, D5 (Plaintiff in OS 130/2008) could resist the
illegal acts committed by the plaintiff and her
children, but to prove the said interference of plaintiff
and her children, D5(Plaintiff in OS 130/2008) neither
choose to adduce any corroborative oral evidence nor
marked any supportive document. If really plaintiff
and her children (D1 to D3 in OS 130/2008)
committed the alleged illegal acts against D5 and the
same was resisted with the help of one Pothuraju and
others, what prevented D5(Plaintiff in OS 130/2008)
to get examine said Pothuraju or any others person
who allegedly resisted plaintiff and her children (D1 to
D3 in OS 130/2008) on his behalf to prove the alleged
interference of plaintiff and her children. But no
positive evidence is placed by D5(Plaintiff in OS
130/2008) to establish the alleged inference of
plaintiff and her children (who are D1 to D3 in OS
130/2008). In absence of any positive evidence, the
version of D5(Plaintiff in OS 130/2008) that while he
is enjoying the property, plaintiff and her children
(who are D1 to D3 in OS 130/2008) came to schedule
property and interfered into his possession of property
is not tenable. Further more once D5(Plaintiff in OS
130/2008) failed to establish his possession over the
plaint schedule property, the question of interfere does
not arise.</span></p><p>AP HIGH COURT </p><p>THE HONOURABLE SRI JUSTICE B. KRISHNA MOHAN</p><p>SECOND APPEAL NO.278 OF 2020</p><span style="background-color: white; font-family: Arial, Helvetica, sans-serif; font-size: 13.2px;">K. Raghavamma,</span><br style="background-color: white; font-family: Arial, Helvetica, sans-serif; font-size: 13.2px;" /><span style="background-color: white; font-family: Arial, Helvetica, sans-serif; font-size: 13.2px;">Versus</span><br style="background-color: white; font-family: Arial, Helvetica, sans-serif; font-size: 13.2px;" /><p><span style="background-color: white; font-family: Arial, Helvetica, sans-serif; font-size: 13.2px;">K K MOHAN DIED</span></p><p>JUDGMENT:</p><p>This Second Appeal is filed against the judgment and</p><p>decree dated 11.03.2020 passed in A.S.No.96 of 2016 on the</p><p>file of VI Additional District Judge, Krishna at Machilipatnam</p><p>by dismissing the appeal suit and confirming the common</p><p>judgment and decree dated 21.06.2016 passed in O.S.Nos.95</p><p>and 130 of 2008 on the file of I Additional Junior Civil Judge,</p><p>Machilipatnam.</p><p>2. The appellant herein is the appellant in the lower</p><p>appellate Court and plaintiff in O.S.No.95 of 2008. The</p><p>respondents herein are respondents in the lower appellate</p><p>Court and defendants in O.S.No.95 of 2008.</p><p>3. The suit in O.S.No.95 of 2008 is filed by the plaintiff to</p><p>grant permanent injunction against the defendants and his</p><p>men restraining them from interfering with the plaintiff’s</p><p>possession over the plaint schedule property and for costs of</p><p>the suit.</p><p>4. The trial Court having considered the entire material on</p><p>record and after hearing both sides, while dismissing the suit</p><p>held in para Nos.37 and 38 of the common judgment dated</p><p>21.06.2016 that the plaintiff is not entitled for the relief</p><p>sought in the main suit which is extracted hereunder.</p><p>“37. As per the version of D5 (Plaintiff in OS</p><p>130/2008) while he is enjoying the property, plaintiff </p><p>2</p><p>and her children who are D1 to D3 in OS130/08,</p><p>along with 5 others, came to the suit schedule</p><p>property on 23.02.08 at about 6:00 p.m., without any</p><p>manner of right, title, possession try to occupy the</p><p>same and at the intervention of one Pothuraju and</p><p>others, D5 (Plaintiff in OS 130/2008) could resist the</p><p>illegal acts committed by the plaintiff and her</p><p>children, but to prove the said interference of plaintiff</p><p>and her children, D5(Plaintiff in OS 130/2008) neither</p><p>choose to adduce any corroborative oral evidence nor</p><p>marked any supportive document. If really plaintiff</p><p>and her children (D1 to D3 in OS 130/2008)</p><p>committed the alleged illegal acts against D5 and the</p><p>same was resisted with the help of one Pothuraju and</p><p>others, what prevented D5(Plaintiff in OS 130/2008)</p><p>to get examine said Pothuraju or any others person</p><p>who allegedly resisted plaintiff and her children (D1 to</p><p>D3 in OS 130/2008) on his behalf to prove the alleged</p><p>interference of plaintiff and her children. But no</p><p>positive evidence is placed by D5(Plaintiff in OS</p><p>130/2008) to establish the alleged inference of</p><p>plaintiff and her children (who are D1 to D3 in OS</p><p>130/2008). In absence of any positive evidence, the</p><p>version of D5(Plaintiff in OS 130/2008) that while he</p><p>is enjoying the property, plaintiff and her children</p><p>(who are D1 to D3 in OS 130/2008) came to schedule</p><p>property and interfered into his possession of property</p><p>is not tenable. Further more once D5(Plaintiff in OS</p><p>130/2008) failed to establish his possession over the</p><p>plaint schedule property, the question of interfere does</p><p>not arise.</p><p>38. It is well settled law and principle that when a</p><p>person came to the court and seek a relief of</p><p>permanent injunction, he has to establish the</p><p>possession over the plaint schedule property as on the </p><p>3</p><p>date of filing of the suit and also interference of</p><p>opposite party into his peaceful possession and</p><p>enjoyment, but though D5, who is plaintiff in OS</p><p>130/08 filed suit for seeking a relief of permanent</p><p>injunction against plaintiff herein, who is D3 in OS</p><p>130/08 failed to prove his possession over plaint</p><p>schedule property as well as alleged interference of</p><p>plaintiff and her children. Though D5 examined Dw1</p><p>to 4 and marked Exs.B1 to B3 on his behalf, but</p><p>nothing is elicited to prove his possession over plaint</p><p>schedule property and alleged interference. Therefore</p><p>the plaintiff failed to produce any proper and cogent</p><p>evidence to prove his possession over the disputed</p><p>property as well as alleged interference of plaintiff and</p><p>others. Therefore D5, who is plaintiff in OS 130/08 is</p><p>not entitled to seek any relief sought for. Accordingly,</p><p>2nd issue is determined and decided against D5, who</p><p>is plaintiff in OS 130/2008.”</p><p>5. Aggrieved by the same the plaintiff in O.S.No.95 of 2008</p><p>preferred an appeal in A.S.No.96 of 2016 on the file of the</p><p>learned VI Additional District and Sessions Judge, Krishna,</p><p>Machilipatnam. The lower Appellate Court upon hearing both</p><p>the parties framed issues No.1 to 4 at para No.7 of the</p><p>judgment and after examining all the issues came to a</p><p>conclusion that the appellant therein who is plaintiff in</p><p>O.S.No.95 of 2008 is not entitled for any relief and</p><p>accordingly dismissed the appeal by confirming the common</p><p>judgment and decree dated 21.06.2016 passed in O.S.Nos.95</p><p>and 130 of 2008 on the file of I Additional Junior Civil Judge,</p><p>Machilipatnam against which the present second appeal is </p><p>4</p><p>filed with the following grounds which are in the nature of</p><p>appeal grounds:</p><p>1. Whether both the Courts below are right in giving</p><p>a finding that the oral contract of sale is not a sale</p><p>and after lapse of 18 years filing a suit for Specific</p><p>Performance is fatal to seeking such relief by the</p><p>appellant/plaintiff?</p><p>2. Whether both the Courts below are right in</p><p>denying 18 years possession of the appellant over</p><p>the suit property, in as much as the same was also</p><p>admitted by the respondent No.1?</p><p>3. Whether both the Courts below are right in not</p><p>considering Ex.A3 to A6 and A17 to A24, which</p><p>were issued by the competent authority?</p><p>4. Whether both the Courts below are right in not</p><p>applying the direct decision rendered in AIR 2000</p><p>AP 504 on similar facts when the parties are close</p><p>relatives under an oral contract of sale?</p><p>5. Whether both the Courts below are right in not</p><p>applying the direct decision of Clacutta High Court</p><p>in AIR 2001 Cal 42 in which AIR 1946 F.C. 97 was</p><p>followed on oral contract of sale?</p><p>6. Whether both the Courts below are right in not</p><p>coming to conclusion that in view of the spiraling</p><p>price, now in the Town due to coming of Port, the</p><p>respondents colluded together and brought Ex.B1</p><p>agreement of Sale-Cum-Power of Attorney which is</p><p>not bonafide one and invalid in view of the</p><p>judgment rendered by the Hon’ble Apex Court</p><p>reported in AIR 2009 SC 3077?</p><p>7. Whether both the Courts below are right in holding</p><p>that suit is filed for specific performance on the</p><p>basis of Ex.A1? </p><p>5</p><p>8. Whether the lower Appellate Court is holding the</p><p>decisions of Trial Court and its findings?</p><p>6. Heard Sri Kancharlapalli Siva Rama Prasad, learned</p><p>counsel for the appellant.</p><p>7. Having heard and perused the material on record, this</p><p>Court opines that the learned counsel for the appellant had</p><p>miserably failed in showing that the substantial question of</p><p>law is involved for seeking any indulgence of this Court in the</p><p>present second appeal.</p><p>8. Having regard to the facts and circumstances of the</p><p>case, as no substantial question of law is framed or evaluated</p><p>seeking indulgence of this Court in judgment passed by the</p><p>lower appellate Court confirming the judgment of the Court</p><p>below, this Court is of the view that this Second Appeal is</p><p>liable to be dismissed at admission stage.</p><p>9. Accordingly, this Second Appeal is dismissed. There</p><p>shall be no order as to costs.</p><p> As a sequel thereto, miscellaneous petitions, if any,</p><p>pending shall stand closed.</p><p> ________________________</p><p>B. KRISHNA MOHAN, J</p><p>Date: 30.11.2020</p><p>IKN </p><p>6</p><p>HONOURABLE SRI JUSTICE B. KRISHNA MOHAN</p><p>S.A.No.278 of 2020</p><p>30.11.2020</p><p>IKN </p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-77532342018424673712021-03-26T15:17:00.001+05:302021-03-26T15:17:16.726+05:30when the defendant disputed the title of the plaintiff’s vendors, the suit ought to have been filed for declaration of title and mere seeking of a permanent injunction will not entitle the plaintiff for a decree. In the absence of establishment of possession and enjoyment of the said property, it cannot be decreed.<p> <span style="color: red;">when the defendant disputed the title of the
plaintiff’s vendors, the suit ought to have been filed for declaration of title and mere seeking of a permanent
injunction will not entitle the plaintiff for a decree. In the
absence of establishment of possession and enjoyment of the
said property, it cannot be decreed.</span></p><p>AP HIGH COURT </p><p>THE HONOURABLE SRI JUSTICE B. KRISHNA MOHAN</p><p>SECOND APPEAL NO.280 OF 2020</p><p><span style="background-color: #f3fafe; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">Sodisetty Subramanyam</span></p><p><span style="background-color: #f3fafe; font-family: Arial, Helvetica, sans-serif; font-size: 12px;"> -VS-</span></p><p><span style="background-color: #f5f1fc; font-family: Arial, Helvetica, sans-serif; font-size: 12px;">Poola Balanchendraiah</span></p><p>JUDGMENT:</p><p>This Second Appeal is filed against the judgment and</p><p>decree, dated 20.03.2020 passed in A.S.No.23 of 2018 on the</p><p>file of the III Additional District Judge at Rajampet dismissing</p><p>the appeal by confirming the judgment and decree dated</p><p>23.04.2018 passed in O.S.No.9 of 2014 on the file of Junior</p><p>Civil Judge, Railway Kodur.</p><p>2. The appellant herein is the appellant before the lower</p><p>appellate Court and plaintiff in O.S.No.9 of 2014. The</p><p>respondent herein is the respondent before the lower</p><p>appellate Court and defendant in the said suit.</p><p>3. The suit in O.S.No.9 of 2014 is filed before the Junior</p><p>Civil Judge, Railway Kodur against the defendant for grant of</p><p>permanent injunction restraining him, his men and agents</p><p>from interfering with the plaintiff’s peaceful possession and</p><p>enjoyment over the suit schedule property i.e. land</p><p>admeasuring Ac.0-05 cents in survey No.58/6 of Kodur</p><p>village and costs of the suit.</p><p>4. The case of the plaintiff is that an extent of Ac.0-41</p><p>cents of land in survey No.58/6 is an ancestral property of</p><p>one Katikam Seshaiah and during his life time, he sold away</p><p>Ac.0-36 cents out of Ac.0-41 cents by retaining Ac.00-05</p><p>cents of the land. After his death, the property devolved upon</p><p>the legal heirs of said Katikam Seshaiah and from them, the </p><p>2</p><p>plaintiff purchased Ac.00-05 cents i.e. the suit schedule</p><p>property. The suit schedule property is a part and parcel of</p><p>Ac.0-41 cents. But the same was opposed by the defendant.</p><p>5. On behalf of the plaintiff, PWs1 and 2 were examined</p><p>and Exs.A1 to A5 were marked. On behalf of the defendants,</p><p>DWs1 and 2 were examined and Exs.B1 to B5 were marked.</p><p>After hearing both the sides, the Court below came to a</p><p>conclusion that in a suit for permanent injunction, the</p><p>plaintiff has to prove his possession and enjoyment over the</p><p>suit schedule property as on the date of filing the suit basing</p><p>on the strength of his own case and not on the weakness of</p><p>the defendant’s case. The plaintiff admittedly relied upon</p><p>Ex.A3 and considering the merits, the Court below came to a</p><p>conclusion that the plaintiff could not establish his</p><p>possession over the suit schedule property of the land</p><p>admeasuring Ac.00-05 cents and as such the suit was</p><p>dismissed observing further that it is a misconceived one, as</p><p>the plaintiff sought only for permanent injunction when there</p><p>is a title dispute between the parties. Aggrieved by the same,</p><p>the plaintiff preferred the first appeal in A.S.No.23 of 2018</p><p>before the III Additional District Judge, Rajampet.</p><p>6. The lower appellate Court after hearing both the sides,</p><p>gave a finding to the effect that prior to the instant case,</p><p>under Ex.B5 itself, the defendant disputed the title of the</p><p>plaintiff’s vendors, as such the suit ought to have been filed </p><p>3</p><p>for declaration of title and mere seeking of a permanent</p><p>injunction will not entitle the plaintiff for a decree. In the</p><p>absence of establishment of possession and enjoyment of the</p><p>said property, it cannot be decreed. Hence, the lower</p><p>appellate Court has dismissed the appeal and confirmed the</p><p>judgment of the trial Court against which the present second</p><p>appeal is preferred raising some grounds purported to be the</p><p>substantial questions of law. Two of such questions are</p><p>hereunder:</p><p>“(L) Whether or not the Gift Settlement Deed dated</p><p>22.08.1958 produced and marked on behalf of the</p><p>defendant as Ex.B1 confers any right to conclude</p><p>the title and possession over the suit schedule</p><p>property although the oral transfer of the Suit</p><p>Schedule Property is invalid?</p><p>(N) Whether or not the Courts are justified in</p><p>shifting the onus of the plaintiff for disproving the</p><p>knowledge about the Gift Settlement Deed dated</p><p>22.08.1958?”</p><p>7. Heard the learned counsel for the appellant/plaintiff</p><p>and perused the record.</p><p>8. Having regard to the facts and circumstances of the</p><p>case, taking into consideration of the judgments rendered by</p><p>the Courts below wherein it was held that the plaintiff has</p><p>miserably failed in establishing the possession over the suit</p><p>schedule property as on the date of initiating an action, the</p><p>suit for granting permanent injunction can’t be decreed and </p><p>4</p><p>that apart as the appellant/plaintiff has not made out any</p><p>grounds to frame any substantial questions of law, this Court</p><p>finds no reason to interfere with the judgments of the lower</p><p>Courts and accordingly this Second Appeal is dismissed.</p><p>There shall be no order as to costs.</p><p> As a sequel thereto, miscellaneous petitions, if any,</p><p>pending shall stand closed.</p><p> ________________________</p><p>B. KRISHNA MOHAN, J</p><p>Date: 30.11.2020</p><p>IKN </p><p>5</p><p>HONOURABLE SRI JUSTICE B. KRISHNA MOHAN</p><p>S.A.No.280 of 2020</p><p>30.11.2020</p><p>IKN </p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0tag:blogger.com,1999:blog-4311025128448617553.post-75268339691307370432021-03-26T14:54:00.004+05:302021-03-26T14:54:37.766+05:30whether the civil Court has no jurisdiction for eviction of a tenant by landlord as the SARFAESI proceedings were initiated by the bank aganist the landlord ? - No The appellants herein/the tenants are neither the guarantors nor any person inducted into the possession of the secured asset/suit schedule property by way of a lease after notice under Section 13 (2) was given and default committed. Admittedly they have been inducted into the possession of the plaint schedule property on 01.11.2011 by virtue of an oral lease and they have committed default of payment of rent with effect from 01.12.2012 and the creditor bank took symbolic possession of the secured asset/plaint schedule property of the borrower/landlord on 18.09.2015 under the provisions of SARFAESI Act which was not injucted by the Courts below. The present case which was dealt by the Courts below is totally falls outside the purview of the proceedings of the SARFAESI Act and the Judgments and decrees of the Courts below do not hit or inject the Debt Recovery Tribunal or any other Appellate Tribunal to function under the provisions of SARFAESI Act with reference to the very same plaint schedule property which is a secured asset mortgaged by the borrower/the landlord/the respondent herein. There is no conflict of orders passed by the Courts below with the orders that may be passed under SARFAESI Act and RDBI Act 1993. <p>whether the civil Court has no jurisdiction for eviction of a tenant by landlord as the
SARFAESI proceedings were initiated by the bank aganist the landlord ? - No</p><p>The appellants
herein/the tenants are neither the guarantors nor any person
inducted into the possession of the secured asset/suit schedule
property by way of a lease after notice under Section 13 (2) was given
and default committed. Admittedly they have been inducted into the
possession of the plaint schedule property on 01.11.2011 by virtue of
an oral lease and they have committed default of payment of rent
with effect from 01.12.2012 and the creditor bank took symbolic
possession of the secured asset/plaint schedule property of the
borrower/landlord on 18.09.2015 under the provisions of SARFAESI Act
which was not injucted by the Courts below.</p><p>The present case which was dealt by the Courts below is totally
falls outside the purview of the proceedings of the SARFAESI Act and
the Judgments and decrees of the Courts below do not hit or inject
the Debt Recovery Tribunal or any other Appellate Tribunal to
function under the provisions of SARFAESI Act with reference to the
very same plaint schedule property which is a secured asset
mortgaged by the borrower/the landlord/the respondent herein.
There is no conflict of orders passed by the Courts below with the
orders that may be passed under SARFAESI Act and RDBI Act 1993. </p><p>IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI</p><p>HON’BLE SRI JUSTICE B.KRISHNA MOHAN</p><p>SECOND APPEAL No.28 OF 2021</p><p>Between:</p><p>Barigala Kotesh, S/o. Peturu & another</p><p>… APPELLANTS</p><p>AND</p><p>Bandaru Yedukondalu, S/o. Venkateswarlu</p><p><br /></p><p>... RESPONDENT</p><p>DATE OF JUDGMENT PRONOUNCED : 12.02.2021</p><p>SUBMITTED FOR APPROVAL</p><p>HONOURABLE SRI JUSTICE B. KRISHNA MOHAN</p><p>1. Whether Reporters of Local Newspapers</p><p>may be allowed to see the order? Yes/No</p><p>2. Whether the copy of order may be</p><p>marked to Law Reporters/Journals? Yes/No</p><p>3. Whether His Lordship wish to see the</p><p>fair copy of the order? Yes/No</p><p>_________________________</p><p>JUSTICE B. KRISHNA MOHAN </p><p> 2 BKMJ</p><p> Sa No.28 of 2021</p><p>*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI</p><p>*HONOURABLE SRI JUSTICE B. KRISHNA MOHAN</p><p>+ SECOND APPEAL No.28 OF 2021</p><p>% Dated : 12.02.2021</p><p>Between:</p><p># Barigala Kotesh, S/o. Peturu & another</p><p>… APPELLANTS</p><p>AND</p><p>$ Bandaru Yedukondalu</p><p>... RESPONDENT</p><p>! Counsel for appellants : Mr. G. Rama Chandra Reddy</p><p>^Counsel for Respondent : Mr. Phani Teja Cheruvu</p><p><GIST :</p><p>>HEAD NOTE:</p><p>? Cases referred:</p><p>1 Dt.11.09.2019 in Criminal Appeal Nos.1371 of 2019</p><p>2 Dt. 27.08.2020 in Civil Appeal Nos.2843-2844 of 2010</p><p>3 Dt. 21-01-2021 in SPECIAL LEAVE PETITION (C) Nos.15870 of 2020</p><p>4 Dt.06-05-2016 in CIVIL APPEAL Nos.4083-4084 of 2016</p><p>5 Dt. 25-11-2014 in CIVIL APPEAL No.10589 OF 2014</p><p>6 Dt. 17-07-2017 in CIVIL APPEAL No.9151 of 2017</p><p>7 Dt. 27-01-2021 in CIVIL APPEAL No.6744 of 2013</p><p>8 Dt.18.01.2016 in Civil Appeal No.167 of 2007</p><p> 3 BKMJ</p><p> Sa No.28 of 2021</p><p>HON’BLE SRI JUSTICE B.KRISHNA MOHAN</p><p>SECOND APPEAL No.28 OF 2021</p><p>JUDGMENT:</p><p>This second appeal is filed against the Judgment and decree in</p><p>A.S.No.82 of 2020 on the file of the V Additional District Judge,</p><p>Guntur, FAC III Additional District Judge, Guntur, dated 21.12.2020</p><p>confirming the Judgment and decree in O.S.No.122 of 2016 on the file</p><p>of the Senior Civil Judge, Mangalagiri, dated 05.05.2020 ordering the</p><p>eviction of the appellants herein/tenants to deliver the vacant</p><p>possession of the plaint schedule property to the respondent</p><p>herein/landlord and comply with the other reliefs granted by the</p><p>Courts below.</p><p>2. The appellants herein are the appellants in the first appeal and</p><p>the defendants in the suit. The respondent herein is the respondent</p><p>in the first appeal and the plaintiff in the suit.</p><p>3. Heard the learned counsel for the appellants and the learned</p><p>counsel for the respondent.</p><p>4. The plaintiff initiated an action in O.S.No.122 of 2016 on the</p><p>file of the Senior Civil Judge, Mangalagiri against the defendants for</p><p>eviction and delivery of the vacant possession of the plaint schedule</p><p>property, for the payment of arrears of Rs.4,25,700/- and damages</p><p>for use and occupation unauthorisedly from 01.03.2016 to 31.05.2016 </p><p> 4 BKMJ</p><p> Sa No.28 of 2021</p><p>at the rate of Rs.20,000/- per month with interest at the rate of 24%</p><p>per annum from the date of suit till the date of realisation and costs.</p><p>5. The plaintiff contends that he is the absolute owner of the</p><p>plaint schedule property, the defendants herein took the said</p><p>property/apartment/flat on 01.11.2011 for a monthly rent of</p><p>Rs.8,000/- under an oral lease and the rent was enhanced to</p><p>Rs.12,900/- per month with effect from 01.12.2012, in-spite of</p><p>enjoying the possession of the said property as tenants, the</p><p>defendants have committed default in payment of monthly rent with</p><p>effect from 01.12.2012, due to which the plaintiff became a defaulter</p><p>before the creditor bank of ICICI Bank, in those circumstances he filed</p><p>a case in RCC No.4 of 2013 before the Rent Controller, Mangalagiri for</p><p>eviction against the 1st defendant and the same was allowed and the</p><p>appeal preferred by the 1st defendant/tenant in RCA was allowed</p><p>setting aside the order in RCC on the point of jurisdiction, as such the</p><p>defendants continued as tenants in the schedule premises without</p><p>paying any rents with effect from December, 2012 and that apart the</p><p>defendants filed a suit in O.S.No.291 of 2015 on the file of the</p><p>Principal Junior Civil Judge, Mangalagiri for permanent injunction</p><p>against the landlord/plaintiff herein which is being contested by the</p><p>plaintiff herein. Subsequently the plaintiff got issued a statutory</p><p>notice, dated 03.02.2016 to the defendants terminating the lease of</p><p>the schedule property/apartment by the end of the month of</p><p>February, 2016 calling upon them to vacate the plaint schedule</p><p>property within 15 days from the date of receipt of the said notice by </p><p> 5 BKMJ</p><p> Sa No.28 of 2021</p><p>paying the arrears of rent since December, 2012 till the date of</p><p>vacation of the premises at the rate of Rs.12,900/- per month and</p><p>payment of damages for the unauthorised occupation at the rate of</p><p>Rs.20,000/- per month till the premises is vacated. Since the</p><p>defendants did not comply with the said demand notice, the plaintiff</p><p>was constrained to file the suit for eviction, for damages and recovery</p><p>of arrears of rent since December, 2012 to till the date of eviction.</p><p>6. Then, the defendants filed a written statement denying the</p><p>averments and contentions of the plaintiff contending further that the</p><p>plaintiff purchased the plaint schedule property/the apartment under</p><p>a valid registered sale deed obtaining loan from ICICI Bank, Bandar</p><p>Road Branch, Vijaywada, became a defaulter in payment of loan</p><p>installments and as such the plaintiff intended to sell the said</p><p>property, then one Mr. Barigala Suresh, purchased the said property</p><p>for an amount of Rs.18 lakhs by paying an advance amount of</p><p>Rs.5 lakhs under an agreement of sale dated 13.10.2011, the said</p><p>purchaser is none other than the brother of the 1st defendant, the</p><p>plaintiff delivered the possession of the suit schedule property and</p><p>the brother of the 1st defendant/the purchaser has let out the said</p><p>property to the 1st defendant and as such, they have been in</p><p>possession and enjoyment of the same on a rent of Rs.5,000/- per</p><p>month and the 2nd defendant filed a complaint in crime No.159 of</p><p>2015, dated 29.06.2015 against the plaintiff and others under Sections</p><p>323, 427, 506, 509 r/w 34 of IPC, Section 3-1-1, 3-1-X SC, ST POA Act</p><p>which is pending before the Mangalagiri Town police station. </p><p> 6 BKMJ</p><p> Sa No.28 of 2021</p><p>7. Basing upon the above said rival averments and contentions, the</p><p>trail Court framed the issues as follows :-</p><p>(1) Whether the plaintiff has got title over the</p><p>plaint schedule property or not ?</p><p>(2) Whether the defendants are tenants of plaintiff</p><p>with regard to the plaint schedule property or</p><p>not ?</p><p>(3) Whether the defendants committed wilful</p><p>default in payment of rent for the plaint</p><p>schedule property or not ?</p><p>(4) Whether the defendants are liable to pay the</p><p>damages as prayed by the plaintiff or not ?</p><p>(5) Whether the plaintiff is entitled for the eviction</p><p>as sought for or not ?</p><p>(6) To what relief ?</p><p>8. During the course of trial on behalf of the plaintiff, PWs.1 and 2</p><p>were examined and Exs.A1 to A13 were marked. On behalf of the</p><p>defendants, DW1 was examined and no document was marked.</p><p>9. The plaintiff in his deposition besides relying upon the</p><p>averments of the plaint further stated that he became the chronic</p><p>defaulter in repayment of loan due to non payment of rents by the</p><p>defendants and as such the ICICI bank took symbolic possession of the</p><p>plaint schedule property under SARFAESI Act on 18.09.2015 and the</p><p>bank is trying to auction the same for realisation of their debt. In</p><p>furtherance of the same, the bank has also filed O.A No.716 of 2016</p><p>before the Debt Recovery Tribunal, Visakhapatnam which is pending</p><p>for trial. </p><p> 7 BKMJ</p><p> Sa No.28 of 2021</p><p>10. After considering the evidence on record, the trial Court gave a</p><p>finding that there is no proof to show that the plaint schedule</p><p>property belongs to the said Barigala Suresh as contended by the</p><p>defendants and they miserably failed in proving the said</p><p>contention/transaction and the defendants have committed default in</p><p>payment of rent and they are due for arrears of payment of rent and</p><p>damages along with the vacation of the premises. Ultimately the suit</p><p>is decreed with costs vide it’s judgment dated 05.05.2020 directing</p><p>the defendants to vacate and deliver the plaint schedule property, to</p><p>pay the arrears of rent of Rs.4,25,700/-, to pay damages of</p><p>Rs.20,000/- per month from 01.03.2016 to 31.05.2016 for an</p><p>unauthorized occupation of the premises from the date of the suit till</p><p>the date of realization and deliver the vacant possession to the</p><p>plaintiff with interest thereupon at the rate of 6% per annum from the</p><p>date of suit till the date of realisation.</p><p>11. Aggrieved by the same, the defendants therein/tenants</p><p>preferred an appeal in A.S.No.82 of 2020 on the file of the III</p><p>Additional District Judge, Guntur. While considering the same, the</p><p>lower appellate Court framed the following points :</p><p>1. Whether there is a landlord and tenant</p><p>relationship existed between the plaintiff and</p><p>defendants ?</p><p>2. Whether the defendants committed wilful</p><p>default in payment of rents for the plaint</p><p>schedule property ?</p><p>3. Whether the plaintiff is entitled for eviction of</p><p>defendants as prayed for ? </p><p> 8 BKMJ</p><p> Sa No.28 of 2021</p><p>4. Whether this appellate Court finds any reasons</p><p>to interfere with the findings on the trial Court?</p><p>5. To what relief ?</p><p>12. It has observed that the appellants therein/the tenants raised</p><p>an additional plea that the civil Court has no jurisdiction as the</p><p>SARFAESI proceedings were initiated by the bank and the bank has</p><p>also filed O.A.No.716 of 2016 against their landlord/the respondent</p><p>therein and service of summons was also marked as Ex.A13 before the</p><p>trial Court. While considering the case on merits, the lower appellate</p><p>Court gave a finding that in case of any grievance for the appellants</p><p>as tenants they can approach the Debt Recovery Tribunal under the</p><p>relevant provisions of the SARFAESI Act and with regard to the</p><p>findings of the trial Court, the same was confirmed, dismissing the</p><p>appeal vide it’s Judgment, dated 21.12.2020. Against the said</p><p>confirming Judgments and decrees the appellants herein/the tenants</p><p>filed the Second Appeal before this Court by framing a ground as</p><p>“substantial question of law” to the effect that “the jurisdiction of</p><p>the civil Court is barred and the proceedings under SARFAESI Act are</p><p>alone available to proceed against the appellants herein/the tenants</p><p>and the respondent herein/the landlord cannot continue the eviction</p><p>proceedings against them and as such the Judgments of the Courts</p><p>below are liable to be set aside on the ground of lack of jurisdiction.”</p><p>13. To substantiate the same, the learned counsel for the</p><p>appellants refers to the following Sections of law under the provisions </p><p> 9 BKMJ</p><p> Sa No.28 of 2021</p><p>of Securitisation and Reconstruction of Financial Assets and</p><p>Enforcement of Security Interest Act, 2002.</p><p>Section 13 :</p><p>13. Enforcement of security interest.—(1)</p><p>Notwithstanding anything contained in section 69 or</p><p>section 69A of the Transfer of Property Act, 1882 (4 of</p><p>1882), any security interest created in favour of any</p><p>secured creditor may be enforced, without the</p><p>intervention of the court or tribunal, by such creditor in</p><p>accordance with the provisions of this Act.</p><p>(2) Where any borrower, who is under a liability to a</p><p>secured creditor under a security agreement, makes any</p><p>default in repayment of secured debt or any installment</p><p>thereof, and his account in respect of such debt is</p><p>classified by the secured creditor as non-performing</p><p>asset, then, the secured creditor may require the</p><p>borrower by notice in writing to discharge in full his</p><p>liabilities to the secured creditor within sixty days from</p><p>the date of notice failing which the secured creditor</p><p>shall be entitled to exercise all or any of the rights</p><p>under sub-section (4).</p><p>1[Provided that—</p><p>(i) - - -</p><p>(ii) - - -</p><p> (4) In case the borrower fails to discharge his liability in</p><p>full within the period specified in sub-section (2), the</p><p>secured creditor may take recourse to one or more of the</p><p>following measures to recover his secured debt,</p><p>namely:—</p><p>(a) take possession of the secured assets of the borrower</p><p>including the right to transfer by way of lease,</p><p>assignment or sale for realising the secured asset;</p><p>[(b) - - -</p><p>(c) - - -</p><p>(d) require at any time by notice in writing, any person</p><p>who has acquired any of the secured assets from the </p><p> 10 BKMJ</p><p> Sa No.28 of 2021</p><p>borrower and from whom any money is due or may</p><p>become due to the borrower, to pay the secured</p><p>creditor, so much of the money as is sufficient to pay the</p><p>secured debt.</p><p>(5) Any payment made by any person referred to in</p><p>clause (d) of sub-section (4)to the secured creditor shall</p><p>give such person a valid discharge as if he has made</p><p>payment to the borrower.</p><p>17. 1[Application against measures to recover secured</p><p>debts].—(1) Any person (including borrower), aggrieved</p><p>by any of the measures referred to in sub-section (4) of</p><p>section 13 taken by the secured creditor or his</p><p>authorised officer under this Chapter,2</p><p>[may make an</p><p>application along with such fee, as may be prescribed,]to</p><p>the Debts Recovery Tribunal having jurisdiction in the</p><p>matter within forty-five days from the date on which</p><p>such measures had been taken:</p><p>1</p><p>[(2) The Debts Recovery Tribunal shall consider whether</p><p>any of the measures referred to in sub-section (4) of</p><p>section 13 taken by the secured creditor for enforcement</p><p>of security are in accordance with the provisions of this</p><p>Act and the rules made thereunder.</p><p>2</p><p>[(3) If, the Debts Recovery Tribunal, after examining the</p><p>facts and circumstances of the case and evidence</p><p>produced by the parties, comes to the conclusion that</p><p>any of the measures referred to in sub-section (4) of</p><p>section 13, taken by the secured creditor are not in</p><p>accordance with the provisions of this Act and the rules</p><p>made thereunder, and require restoration of the</p><p>management or restoration of possession, of the secured</p><p>assets to the borrower or other aggrieved person, it may,</p><p>by order,—</p><p>(a) declare the recourse to any one or more measures</p><p>referred to in sub-section (4) of section 13 taken by</p><p>the secured creditor as invalid; and </p><p> 11 BKMJ</p><p> Sa No.28 of 2021</p><p>(b) restore the possession of secured assets or</p><p>management of secured assets to the borrower or</p><p>such other aggrieved person, who has made an</p><p>application under sub-section (1), as the case may be;</p><p>and</p><p>(c) pass such other direction as it may consider</p><p>appropriate and necessary in relation to any of the</p><p>recourse taken by the secured creditor under subsection (4) of section 13.]</p><p>(4) If, the Debts Recovery Tribunal declares the recourse</p><p>taken by a secured creditor under sub-section (4) of</p><p>section 13, is in accordance with the provisions of this</p><p>Act and the rules made thereunder, then,</p><p>notwithstanding anything contained in any other law for</p><p>the time being in force, the secured creditor shall be</p><p>entitled to take recourse to one or more of the measures</p><p>specified under sub-section (4) of section 13 to recover</p><p>his secured debt.</p><p>1</p><p>[(4A) Where—</p><p>(i) any person, in an application under sub-section (1),</p><p>claims any tenancy or leasehold rights upon the secured</p><p>asset, the Debt Recovery Tribunal, after examining the</p><p>facts of the case and evidence produced by the parties in</p><p>relation to such claims shall, for the purposes of</p><p>enforcement of security interest, have the jurisdiction to</p><p>examine whether lease or tenancy,—</p><p>(a) has expired or stood determined; or</p><p>(b) is contrary to section 65A of the Transfer of</p><p>Property Act, 1882(4 of 1882); or</p><p>(c) is contrary to terms of mortgage; or</p><p>(d) is created after the issuance of notice of default</p><p>and demand by the Bank under sub-section (2) of</p><p>section 13 of the Act; and</p><p>(ii) the Debt Recovery Tribunal is satisfied that tenancy</p><p>right or leasehold rights claimed in secured asset falls</p><p>under the sub-clause (a) or sub-clause (b) or sub-clause</p><p>(c) or sub-clause (d) of clause (i), then notwithstanding </p><p> 12 BKMJ</p><p> Sa No.28 of 2021</p><p>anything to the contrary contained in any other law for</p><p>the time being in force, the Debt Recovery Tribunal may</p><p>pass such order as it deems fit in accordance with the</p><p>provisions of this Act.]</p><p>(5) Any application made under sub-section (1) shall be</p><p>dealt with by the Debts Recovery Tribunal as</p><p>expeditiously as possible and disposed of within sixty</p><p>days from the date of such application:</p><p>Provided that - - -</p><p>34. Civil court not to have jurisdiction.—No civil court</p><p>shall have jurisdiction to entertain any suit or</p><p>proceeding in respect of any matter which a Debts</p><p>Recovery Tribunal or the Appellate Tribunal is</p><p>empowered by or under this Act to determine and no</p><p>injunction shall be granted by any court or other</p><p>authority in respect of any action taken or to be taken in</p><p>pursuance of any power conferred by or under this Act or</p><p>under the Recovery of Debts Due to Banks and Financial</p><p>Institutions Act, 1993 (51 of 1993).</p><p>35. The provisions of this Act to override other laws.—</p><p>The provisions of this Act shall have effect,</p><p>notwithstanding anything inconsistent therewith</p><p>contained in any other law for the time being in force or</p><p>any instrument having effect by virtue of any such law.</p><p>37. Application of other laws not barred.—The</p><p>provisions of this Act or the rules made thereunder shall</p><p>be in addition to, and not in derogation of, the</p><p>Companies Act, 1956 (1 of 1956), the Securities Contracts</p><p>(Regulation) Act, 1956(42 of 1956), the Securities and</p><p>Exchange Board of India Act, 1992 (15 of 1992), the</p><p>Recovery of Debts Due to Banks and Financial Institutions</p><p>Act, 1993 (51 of 1993) or any other law for the time</p><p>being in force.</p><p> 13 BKMJ</p><p> Sa No.28 of 2021</p><p>14. Per contra the learned counsel for the respondent refers to</p><p>some of the decisions of the Hon’ble Supreme Court of India and the</p><p>Hon’ble High Court – Jodhpur as follows :</p><p>01. Criminal Appeal Nos.1371 of 2019, Dt.11.09.20191</p><p> on the file of</p><p>Hon’ble THE SUPREME COURT OF INDIA, held in para No.20 of Page 14 as.,</p><p>“While Section 13 (13) of SARFAESI prohibits a</p><p>borrower from leasing out any of the secured assets</p><p>after receipt of a notice under Section 13 (2) without</p><p>the prior written consent of the secured creditor”.</p><p>02. Civil Appeal Nos.2843-2844 of 2010, Dt. 27.08.20202</p><p> on the file of</p><p>Hon’ble THE SUPREME COURT OF INDIA, held in para No.25 of Page 11 as.,</p><p>“25. A second appeal, or for that matter, any appeal</p><p>is not a matter of right. The right of appeal is</p><p>conferred by statute. A second appeal only lies on a</p><p>substantial question of law. If statute confers a</p><p>limited right of appeal, the Court cannot expand the</p><p>scope of the appeal. It was not open to the</p><p>Respondent-Plaintiff to re-agitate facts or to call</p><p>upon the High Court to reanalyze or re-appreciate</p><p>evidence in a Second Appeal.”</p><p>03. SPECIAL LEAVE PETITION (C) Nos.15870 of 20203</p><p>, Dt. 21-01-2021 on</p><p>the file of Hon’ble THE SUPREME COURT OF INDIA, held in para No.18 OF</p><p>Page 6 as.,</p><p>“18. The Court must interpret a statute in a manner</p><p>which is just, reasonable and sensible. If the</p><p>grammatical construction leads to some absurdity or</p><p>some repugnancy or inconsistency with the legislative</p><p>intent, as may be deducted by reading the provisions</p><p>of the statute as a whole, the grammatical</p><p>construction may be departed from to avoid anomally,</p><p><br /></p><p>1 Dt.11.09.2019 in Criminal Appeal Nos.1371 of 2019</p><p>2 Dt. 27.08.2020 in Civil Appeal Nos.2843-2844 of 2010</p><p>3 Dt. 21-01-2021 in SPECIAL LEAVE PETITION (C) Nos.15870 of 2020</p><p> 14 BKMJ</p><p> Sa No.28 of 2021</p><p>absurdity or inconsistency. To quote Venkatarama</p><p>Aiyar, J. In Tirath Singh v. Bachittar Singh. AIR 1955</p><p>SC 830 (at 833), “where the language of a statute, in</p><p>its ordinary meaning and grammatical construction,</p><p>leads to a manifest contradiction of the apparent</p><p>purpose of the enactment, or to some inconvenience</p><p>or absurdity, hardship or injustice, presumably not</p><p>intended, a construction may be put upon it which</p><p>modifies the meaning of the words, and even the</p><p>structure of the sentence.” This view has been</p><p>reiterated by this Court.”</p><p>04. CIVIL APPEAL Nos.4083-4084 of 2016, Dt.06-05-20164</p><p> on the file of</p><p>Hon’ble THE SUPREME COURT OF INDIA, held as in Para No.14 as.,</p><p>“The issues of facts once finally determined will</p><p>however, stare at the parties and bind them on</p><p>account of earlier judgments or for any other good</p><p>reason where equitable principles of estoppel are</p><p>attracted.”</p><p>05. CIVIL APPEAL No.10589 OF 2014, Dt. 25-11-20145</p><p> on the file of</p><p>Hon’ble THE SUPREME COURT OF INDIA, held in para No.13 as.,</p><p>“13. In the present case, we find this statement of law</p><p>would apply on all fours. The judgment of the Trail</p><p>Court has been decided issue wise, on the merits,</p><p>after hearing both parties. The suit has finally been</p><p>decreed. Consequently this judgment cannot be</p><p>reversed purely on technical grounds unless there is a</p><p>failure of justice, which we have seen, is nobody’s</p><p>case.”</p><p>06. CIVIL APPEAL No.9151 of 2017, Dt. 17-07-20176</p><p> on the file of Hon’ble</p><p>THE SUPREME COURT OF INDIA, held in Para No.48 as.,</p><p>“48)We sincerely feel that the eviction matters should</p><p>be given priority in their disposal at all stages of</p><p><br /></p><p>4 Dt.06-05-2016 in CIVIL APPEAL Nos.4083-4084 of 2016</p><p>5 Dt. 25-11-2014 in CIVIL APPEAL No.10589 OF 2014</p><p>6 Dt. 17-07-2017 in CIVIL APPEAL No.9151 of 2017 </p><p> 15 BKMJ</p><p> Sa No.28 of 2021</p><p>litigation and especially where the eviction is claimed</p><p>on the ground of bona fide need of the landlord. We</p><p>hope and trust that due attention would be paid by all</p><p>courts to ensure speedy disposal of eviction cases.”</p><p>07. CIVIL APPEAL No.6744 of 2013, Dt. 27-01-2021 7on the file of Hon’ble</p><p>THE SUPREME COURT OF INDIA, held in Para No.8 as.,</p><p>“The first appeal is a valuable right, and, at that</p><p>stage, all questions of fact and law decided by the</p><p>trial court are open for re-consideration. The</p><p>judgment of the appellate court must, therefore,</p><p>reflect conscious application of mind and must record</p><p>the court’s findings, supported by reasons for its</p><p>decision in respect of all the issues, along with the</p><p>contentions put forth and pressed by the parties.”</p><p>08. In Civil Appeal No.167 of 2007, Dt.18.01.20168</p><p> on the file of Hon’ble</p><p>THE SUPREME COURT OF INDIA, held in para Nos.22, 23, 24, as.,</p><p>“22) That apart, we find that the appellants were</p><p>able to prove their ownership through their</p><p>predecessor-in-title on the strength of sale deed</p><p>(Ex.P.6/7) of the suit premises whereas the</p><p>respondents failed to prove their defence. Indeed, the</p><p>burden being on them, it was necessary for the</p><p>respondents to prove that the sale in favour of the</p><p>appellants’ predecessor-in-title of suit premises was a</p><p>transaction of mortgage and not an outright sale.</p><p>Since the respondents did not adduce any</p><p>documentary or oral evidence to prove their defence,</p><p>the first appellate Court was justified in allowing the</p><p>eviction petition. In our view, the evidence adduced</p><p>by the appellants to prove their title over the suit</p><p>premises was sufficient to maintain eviction petition</p><p>against the respondents and it was, therefore, rightly</p><p>accepted by the first appellate Court.</p><p><br /></p><p>7 Dt. 27-01-2021 in CIVIL APPEAL No.6744 of 2013</p><p>8 Dt.18.01.2016 in Civil Appeal No.167 of 2007 </p><p> 16 BKMJ</p><p> Sa No.28 of 2021</p><p>23) As observed supra, the first appellate Court</p><p>having recorded categorical findings that the</p><p>relationship of landlord-tenant was proved and</p><p>secondly, the respondents had committed a wilful</p><p>default in payment of monthly rent and its arrears</p><p>from 01.06.1987, these findings were binding on the</p><p>High Court while deciding the revision petition. It was</p><p>more so when these findings did not suffer with any</p><p>jurisdictional error which alone would have entitled</p><p>the High Court to interfere.</p><p>24) Learned counsel for the respondents lastly argued</p><p>that there was an encroachment made by the</p><p>appellants on the suit premises and document (Ex-P-6)</p><p>was inadmissible in evidence, hence the eviction</p><p>petition was liable to be dismissed on these two</p><p>grounds also. These submissions, in our considered</p><p>view, deserve to be rejected at their threshold</p><p>because the same were not raised in the written</p><p>statement filed by the respondents before the Rent</p><p>Controller and nor were urged at any stage of the</p><p>proceedings. We cannot, therefore, allow such factual</p><p>submissions to be raised for the first time in this</p><p>appeal.”</p><p>09. The Hon’ble Rajasthan High Court – Jodhpur in I.C.I.C.I. Bank</p><p>Limited Vs. Krishna Kumar & Others on 27 April, 2018 held as.,</p><p>“Before incorporation of sub-section (4-A) and</p><p>substitution of sub-section (3) in Section 17 of the</p><p>SARFAESI Act as above, there was no remedy</p><p>available to a tenant who was being dispossessed</p><p>(25 of 25) [CW-16965/2017] under the SARFAESI Act</p><p>and hence, it was in those circumstances that the</p><p>judgment in the case of Vishal N. Kalsaria (supra)</p><p>was passed. The amended Act and incorporation of</p><p>sub-section (4-A) in Section 17 of the SARFAESI Act as</p><p>well as sub-section (3) of Section 17 of the SARFAESI</p><p>Act sufficiently empowered the tenant to challenge </p><p> 17 BKMJ</p><p> Sa No.28 of 2021</p><p>the proceedings qua his dispossession as a lessee or</p><p>a tenant, in case, action is being initiated against</p><p>him for dispossession under the SARFAESI Act.”</p><p>15. As stated supra, Section 13 (1) of the SARFAESI Act, 2002 speaks</p><p>about the power of a secured creditor to enforce any security interest</p><p>without interference of the Court or Tribunal.</p><p> Section 13 (2) of the said Act speaks about the power of the</p><p>secured creditor to issue notice calling upon to discharge the full</p><p>liability of the borrower within 60 days in case of default and</p><p>declaration of the account as non-performing asset.</p><p> Section 13 (4) (a) empowers the creditor to recover the secured</p><p>debt by taking possession of the secured assets of the borrower</p><p>including the right of transfer by way of lease, assignment of sale</p><p>etc., in the case of default and violation of Section 13 (2).</p><p><br /></p><p> Section 13 (4) (d) empowers the secured creditor to issue a</p><p>notice to any person who acquired the security asset to pay money to</p><p>the creditor to satisfy the secured debt of the borrower. As per</p><p>Section 13 (5) any payment made by such a person as per Section 13</p><p>(4) (d) to the secured creditor is a valid discharge.</p><p> As stated supra, Section 17 (1) enables to file an application by</p><p>any person (including the borrower) to question the measures taken</p><p>by the secured creditor under Section 13 (4) within 45 days from the</p><p>date of such measures taken. </p><p> 18 BKMJ</p><p> Sa No.28 of 2021</p><p> Under Section 17 (4A) the Debt Recovery Tribunal would go into</p><p>the issues and examine the facts of the case with reference to the</p><p>situations enshrined in sub clause (a) to (d) of Section 17 (4A) (i)</p><p>provided either any tenant or lessee files an application under Section</p><p>17 (1).</p><p> Section 34 bars the jurisdiction of Civil Court to entertain any</p><p>suit or proceedings in respect of the matters having jurisdiction of the</p><p>Debt Recovery Tribunal or the Appellate Tribunal under the provisions</p><p>of SARFAESI Act, 2002 and the RDBI Act, 1993 and no injunction can</p><p>be granted for the action taken under the said Acts.</p><p>16. It is to be carefully seen that all the above said provisions of the</p><p>SARFAESI Act do not come to the rescue of the appellants/tenants</p><p>herein as none of the situations and circumstances are applicable to</p><p>the facts and circumstances of the present case. The appellants</p><p>herein/the tenants are neither the guarantors nor any person</p><p>inducted into the possession of the secured asset/suit schedule</p><p>property by way of a lease after notice under Section 13 (2) was given</p><p>and default committed. Admittedly they have been inducted into the</p><p>possession of the plaint schedule property on 01.11.2011 by virtue of</p><p>an oral lease and they have committed default of payment of rent</p><p>with effect from 01.12.2012 and the creditor bank took symbolic</p><p>possession of the secured asset/plaint schedule property of the</p><p>borrower/landlord on 18.09.2015 under the provisions of SARFAESI Act</p><p>which was not injucted by the Courts below. At least it is not the </p><p> 19 BKMJ</p><p> Sa No.28 of 2021</p><p>case of the appellants/the tenants that they have made an</p><p>application under Section 17 (1) seeking shelter under sub Clause (4A)</p><p>of Section 17 of the SARFAESI Act. Obviously they could not do so,</p><p>because they are not inducted into the suit schedule property</p><p>subsequent to the notice issued under Section 13 (2) and symbolic</p><p>possession taken under Section 13 (4). Hence they can’t be termed as</p><p>any person or tenant under the provisions of SARFAESI Act.</p><p>17. The present case which was dealt by the Courts below is totally</p><p>falls outside the purview of the proceedings of the SARFAESI Act and</p><p>the Judgments and decrees of the Courts below do not hit or inject</p><p>the Debt Recovery Tribunal or any other Appellate Tribunal to</p><p>function under the provisions of SARFAESI Act with reference to the</p><p>very same plaint schedule property which is a secured asset</p><p>mortgaged by the borrower/the landlord/the respondent herein.</p><p>There is no conflict of orders passed by the Courts below with the</p><p>orders that may be passed under SARFAESI Act and RDBI Act 1993.</p><p>From the above said facts and circumstances and legal position, it is</p><p>obvious and evident that the appellants’ relationship is only with their</p><p>landlord and they are nothing to do with the secured creditor/the</p><p>banker who advanced housing loan to their landlord as a borrower.</p><p>Just because their landlord has become the defaulter before the bank</p><p>with reference to payment of equated monthly installments of a</p><p>housing loan with respect to the plaint schedule property, the tenants</p><p>cannot take undue advantage of the same and exploit by refraining to </p><p> 20 BKMJ</p><p> Sa No.28 of 2021</p><p>make payments of rents flouting their oral lease and understanding</p><p>between the parties.</p><p><br /></p><p>18. In view of the forgoing reasons, the Second Appeal has to fail as</p><p>there is no substantial question of law for interference of this Court</p><p>under Section 100 C.P.C. and the appellants herein are directed to</p><p>vacate the plaint schedule property within four (4) months from today</p><p>by complying with the other terms of the decree of the trial Court as</p><p>it is. It is needless to mention that the respondent shall bring it to</p><p>the notice of the secured creditor and the learned Debt Recovery</p><p>Tribunal in which the proceedings are pending about this Judgment of</p><p>this Court enabling them to take necessary action and passing of</p><p>orders suitably with respect to the secured asset of the respondent</p><p>herein/borrower under the provisions of SARFAESI Act r/w RDBI Act.</p><p>19. Accordingly, the Second Appeal is dismissed. There shall be no</p><p>order as to costs.</p><p> As a sequel, miscellaneous petitions, if any pending in the</p><p>Second Appeal, shall stand closed.</p><p> _________________________</p><p>JUSTICE B. KRISHNA MOHAN</p><p>12th February, 2021.</p><p>Note:-</p><p>L.R. Copy to be marked.</p><p>(B/o)</p><p>Yvk </p>advocatemmmohanhttp://www.blogger.com/profile/07338404357741706945noreply@blogger.com0