Court requiring the plaintiff to produce the originals thereof as a condition precedent for registration of the suit was erroneous in law. A case law

Andhra High Court

Pujari Narsaiah vs Modem Sudhaker, Hasanparthy ... on 20 March, 2015

 
 THE HONBLE SHRI JUSTICE SANJAY KUMAR          

CIVIL REVISION PETITION NO.904 OF 2015     

20-03-2015 

Pujari Narsaiah Petitioner

Modem Sudhaker, Hasanparthy  Mandal, Warangal District, and another.   
Respondents  

Counsel for Petitioner  : Sri Venkateshwar Varanasi 

Counsel for Respondents: --

<GIST: 

>HEAD NOTE:    


?CASES REFERRED:      

 1. 2010 (4) ALD 273
 2.  2011 (4) ALD 775

THE HONBLE SHRI JUSTICE SANJAY KUMAR          

CIVIL REVISION PETITION NO.904 OF 2015     

O R D E R 

By order dated 20.11.2014 passed in S.R.No.6227 of 2014 in un-registered O.S.No.Nil of 2014, the learned Principal District Judge, Warangal, directed the plaintiff therein to file the original cheque dated 22.09.2014 issued in his favour by the second defendant along with an authenticated copy of the agreement dated 22.07.2014 for further scrutiny, failing which the plaint stood rejected. Aggrieved, the plaintiff is before this Court under Article 227 of the Constitution.

As the order under revision was passed by the trial Court even before registration of the suit, this Court does not deem it necessary to put the respondents/defendants on notice in this case.

The subject suit was filed by the plaintiff for recovery of a sum of Rs.22,13,000/- from the defendants with interest and costs. His claim was based on an alleged agreement of sale dated 08.12.2012, whereunder he claimed to have paid them advances, and the cheque dated 22.09.2014, allegedly issued by the second defendant towards part-refund. The office appears to have raised an objection requiring the plaintiff to file the original cheque. Arguments were advanced thereon before the trial Court leading to the order under revision.

It is not in dispute that the plaintiff filed photocopies of the subject cheque and agreement dated 22.07.2014 along with the plaint. The trial Court however observed that it would have been more appropriate for the plaintiff to indicate the whereabouts of the originals of these documents in the plaint and explain his difficulty in producing them. The trial Court concluded that return of the plaint in these circumstances could not be taken to be rejection thereof and that the objection raised by the office could not be deemed improper. The trial Court therefore held that the plaintiff should produce the original cheque dated 22.09.2014 and an authenticated copy of the agreement dated 22.07.2014, failing which the plaint was liable to be rejected.

It is clear from the order under revision that the trial Court did not treat the case on hand as one relating to rejection of the plaint under Order 7 Rule 11 CPC. The trial Court was however of the opinion that failure to comply with the office objection would still entail rejection of the plaint. The lapse of the plaintiff, according to the trial Court, was that he failed to file certain documents along with the plaint and he did not explain as to where their originals were. Reliance was placed by the trial Court on Rule 22 of the Andhra Pradesh Civil Rules of Practice and Circular Orders 1980 (for brevity, the Civil Rules of Practice). However, the Civil Rules of Practice would always be subject to the Code of Civil Procedure, 1908. It is in this regard that Order 7 Rule 14 CPC and Order 13 Rule 1 CPC, which were not considered by the trial Court, would gain relevance. Order 7 Rule 14 CPC, to the extent relevant, reads as under:

14. Production of document on which plaintiff sues or relies:--

(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

.

Thus, under Order 7 Rule 14(1) CPC, the plaintiff is only required to produce the originals of the documents which are in his possession or power at the time of presentation of the plaint. Order 7 Rule 14(2) CPC makes it clear that, wherever possible, the plaintiff shall state in his plaint as to in whose possession or power any document, which ought to have been produced by him and has not been so produced, is. The duty cast upon the plaintiff is therefore not in absolute terms. Further, Order 7 Rule 14(3) CPC makes it clear that when the plaintiff fails to produce a document which ought to have been produced by him along with the plaint or he fails to enter such document in the list annexed to the plaint, he shall not be permitted to adduce such document in evidence without the leave of the Court. This provision therefore puts it beyond doubt that neither the failure to produce a document along with the plaint nor the failure in entering the details of such document in the list annexed to the plaint would be fatal to the suit at the time of its registration and such lapse on his part would still be curable upon his obtaining the leave of the Court.

Order 13 Rule 1 CPC deals with production of original documents and, to the extent relevant, reads as under:

1. Original documents to be produced at or before the settlement of issues:-

(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with the plaint or written statement. ...

The above provision manifests that production of documents in original, when photocopies thereof have been filed along with the plaint, would be necessary only at or before settlement of the issues. Significantly, in the case on hand, the plaintiff had filed photocopies of both the documents in question. Further, the office had raised an objection only as regards production of the original cheque and had not adverted to the agreement dated 22.07.2014. It appears that the trial Court, while hearing arguments on the office objection, brought up this additional issue.

Reliance on Rule 22 of the Civil Rules of Practice by the trial Court appears to be misplaced. Rule 22(2) requires the Chief Ministerial Officer of the Court to make an endorsement on the plaint, when he finds that the plaint complies with all the requirements, that he had examined the same and that it may be registered. There is no requirement prescribed in Rule 22 of the Civil Rules of Practice that all original documents relied upon must invariably be produced along with the plaint. In fact, no such requirement could have been prescribed in the said rule as it would have run contra to the provisions of the Code of Civil Procedure, 1908, referred to supra.

It may be noticed that in MOHD. OSMAN ALI V/s. SECOND JUNIOR CIVIL JUDGE, CITY CIVIL COURT, HYDERABAD , this Court pointed out that it is no part of the duty of the trial Court to examine, at the stage of scrutiny and registration of the suit, whether the plaintiff had adduced sufficient documentary evidence in support of his prayer in the suit. This Court held that the trial Court cannot, at the scrutiny stage, insist on the plaintiff to file the documents, which, in its opinion are relevant for granting relief. Again, in DANTALA PRAVEEN V/s. BAIRABOINA VEERAMMA , this Court observed that at the stage of presentation of the suit, the trial Court can only insist on strict compliance with the provisions of the Code and reject the plaint only if it is satisfied that one or more of the grounds mentioned in Order 7 Rule 11 of the Code are present. This Court further observed that it is not the function of the trial Court to involve itself in examination of a purported discrepancy in a minute manner and reject the plaint on such ground at the threshold as such a procedure is not sanctioned by law.

In the light of the aforestated legal position, the approach of the trial Court in examining the merits of the suit claim on the strength of the photocopies placed before it and requiring the plaintiff to produce the originals thereof as a condition precedent for registration of the suit was erroneous in law. The provisions of the Code of Civil Procedure, 1908, referred to hereinabove, make it clear that a plaintiff who fails to produce a document or mention it in the list of documents appended to the plaint, only runs the risk of having such documentary evidence excluded unless he obtains the leave of the Court thereafter. Further, originals of the photocopies of documents filed along with the plaint can, in any event, be produced at or before settlement of the issues.

In that view of the matter, the order under revision is unsustainable in law and is accordingly set aside. The trial Court is directed to entertain the subject suit and register the same if it is otherwise found to be in order.

The Civil Revision Petition is allowed. Pending miscellaneous petitions, if any, shall stand closed in the light of this final order. No order as to costs.

-------------------------------------

SANJAY KUMAR, J 20TH MARCH, 2015

Whether son and grandson have right in property which father got in partition?

 

Whether son and grandson have right in property which father got in partition?    

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5415 of 2011

Decided On: 02.07.2018

Shyam Narayan Prasad Vs. Krishna Prasad and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and S. Abdul Nazeer, JJ.

Citation: (2018) 7 SCC 646

Therefore, the properties acquired by Defendant No. 2 in the partition dated 31.07.1987 although are separate property qua other relations but it is a coparcenary property insofar as his sons and grandsons are concerned. In the instant case, there is a clear finding by the trial court that the properties are ancestral properties which have been divided as per the deed of partition dated 31.07.1987. The property which had fallen to the share of Defendant No. 2 retained the character of a coparcenary property and the Plaintiffs being his sons and grandson have a right in the said property. Hence, it cannot be said that the suit filed by the Plaintiffs was not maintainable.

Shyam Narayan Prasad Vs. Krishna Prasad and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and S. Abdul Nazeer, JJ.

Citation: (2018) 7 SCC 646

The police are incompetent to take cognizance of the offences punishable under Sections 54 and 59 (1) of the Food Safety and Standards (FSS) Act, 2006

 https://indiankanoon.org/doc/1604466Mohammad Baligur Rehaman vs The State Of 

Telangana on 21 October, 2020;

the police are incompetent to take cognizance of the offences punishable under Sections 

54 and 59 (1) of the Food Safety and Standards (FSS) Act, 2006, investigating into the offences 

along with 188, 270, 272 and 273 of IPC., and filing charge sheet is a grave illegality, as the Food 

Safety Officer alone is competent to investigate and to file charge sheet following the Rules laid down 

under Sections 41 and 42 of FSS Act.

i) The information to be accessed/certified copies on the judicial side to be obtained through the mechanism provided under the High Court Rules, the provisions of the RTI Act shall not be resorted to.

 Supreme Court of India

Chief Information Commissioner vs High Court Of Gujarat on 4 March, 2020

Author: R. Banumathi

Bench: R. Banumathi, A.S. Bopanna

 REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO(S).1966-1967 OF 2020

 (Arising out of SLP(C) No.5840 of 2015)

 CHIEF INFORMATION COMMISSIONER ..Appellant

 VERSUS

 HIGH COURT OF GUJARAT AND

 ANOTHER ..Respondents.                       43 i) The information to be accessed/certified copies on the judicial side to be obtained

through the mechanism provided under the High Court Rules, the provisions of the

RTI Act shall not be resorted to.  procedure as the practice or payment of fees, etc. for obtaining information. In the

absence of inherent inconsistency between the provisions of the RTI Act and other

law, overriding effect of RTI Act would not apply.

(ii) The information to be accessed/certified copies on the judicial side to be obtained

through the mechanism provided under the High Court Rules, the provisions of the

RTI Act shall not be resorted to.

44. In the light of aforesaid reasonings, the impugned order dated 13.03.2014 passed by the High

Court of Gujarat at Ahmedabad in Letters Patent Appeal No.1348 of 2013 is confirmed and these

appeals are dismissed. We place on record the valuable assistance rendered by Mr. Atmaram N.S.

Nadkarni as amicus.

...J.

[R. BANUMATHI] ...J.

[A.S. BOPANNA] ...J.

[HRISHIKESH ROY] New Delhi;

 

Representation submitted to Government on Tuition Fee and implementation of G.O 1

 

TO:

THE SPL.CHIEF SECRETARY,

DEPARTMENT OF SCHOOL EDUCATION 

GOVERNMENT OF TELANGANA,

Respected Madam,

SUB: COVID-19 Pandemic- Request to issue necessary instructions to all the Private School Managements  in the State, to reduce Tuition Fee to the extent of 40% during the Academic Year 2020-2021 and also to scrupulously follow the instruction issued in G.O.Ms.No.1, Education (P.S.2) Department Dt: 01-01-1994 and the provisions of RTE Act, 2009 - Regarding.

****

I P.V. Kranthi Kiran S/o Ram Chander Rao, R/o Meerpet, being a parent of school student would like to bring following few issues to the Government’s kind consideration and necessary orders.

 I submit that, in view of Covid-19 pandemic, income of most of the parents has gone down drastically and finance has been severely disrupted and most of the parents are not in a position to afford payment 100% of school/tuition fee as demanded by the Private Educational Institutions.

I would like to bring to Government’s notice that as there is no physical functioning of Schools, since March 2020 and Corporate Private Schools are saving substantial expenditure on various heads, including energy charges on electrical consumptions, transport and vehicular operation, sports and games, cultural event organization, Annual Sports Meet etc., management and operation of laboratories, computers, reduction of expenses on cleaning and maintenance of School Building etc., 

Further most of the private schools, are conducting online classes since June, 2020 by deploying only few teachers for taking such classes and even those teachers who are taking  online classes are paid with 50% salary only. Further, most of the Private School Managements are not paying any salaries to their teachers and non-teaching staff. As such there is no loss in the revenue of the Private Schools.

All above factors, clearly substantiate that, there is a reduction in expenditure to the private schools  on one hand and on the other hand there is no of loss of revenue to the schools, as it is collecting 100% fee on monthly instalment basis. Further in view decrease in maintenance cost,  the private schools may not sustain any loss even if tuition fee is reduced to 40%.  Further as per the CBSE guidelines, the schools can charge only fees to the extent of the expenses for running the school and levy of fees is to be without any profit motive

Further, due to conducting of online classes by the Private schools, the parents who were not having gadgets/laptops were over burdened and they were compelled to purchase the new laptops/gadgets, during the pandemic situation and financial crisis. Further apart from paying monthly tuition fee, there is an additional burden of payment of internet charges, as the parents were left with no option except to take broadband connection for the purpose of facilitating their child for online class.

Further, I submit that, already the Government of Assam, considering the requests received from the school parents of private schools and considering all the above aspects, has issued instructions to private school managements of its State to waive 25% school fees during this Year ( Government of Assam Education( Secondary and Elementary)  Department Memo No. ASE/ 498/2015/Pt-Iv/18 D: 13-08-2020). 

Further I humbly submit that the Government of Telangana in its G.O 244 Dt: 29-12-2017 School Education (Gen ) Department directed that all schools must follow 1)  The Telangana Education Act, 1982,  2)    G.O.Ms.No.1, Education (P.S.2), 01-01-1994 and amendments thereon 3) RTE Act 2009, particularly section 13 of said act which says that no school shall collect capitation fee. 

In this regard I submit that, most of the Corporate Private Schools have concluded new admissions before March’2020 i.e., well before starting of lock down period, and they have collected lump sum amounts towards donations/capitation fee from the parents of newly admitted wards. The Corporate Private School Managements have cleverly included such donation/capitation fee in the Tuition Fee so as to get away from the provisions of  Telangana Educational Institution (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983. If the authorities of Government  verify the fee receipts of newly admitted ward of a particular class and fee receipt of an old student of same class, it can be apparently ascertained that Private School Managements are collecting capitation fee in violation of provision  of afore mentioned Act. 

Further, I humbly submit that at present all the Private School Managements are enhancing 10% fee yearly, putting heavy burden on the parents. Though the Telangana Fee Regulation Committee headed by Sri Tirumal Rao has submitted a report Lr. RC.No.  1210/PS-3-1/(B2-2)/2010 Dt: 30-12-2017  recommending said 10 % hike per year, the Government in its  Memo No.35/SE/Genl/A2/2017 Dt: 0-03-2018, addressed to Chairman, TFRC,  Telangana stated  that  the said 10% hike, explained does not contain any logic or calculation. Further in the said Memo it has been also sated that, the Committed failed to observe legal position that the  powers delegated in  G.O. No.1 Dt:01-01-1994   to the Governing Body of the school to fix fee is actually in contravention of the Section 7 of Telangana Educational Institution (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983, which clearly state that the fee has to be notified by Government only. .  Inspite of the fact that the  said report of  Telangana Fee Regulation Committee is not yet approved by the Government,  most of the schools are enhancing the fee, annually at exorbitant rates. In this regard we submit that in order to curb the unlawful practices of the Private School Managements, the Government of Uttar Pradesh has already formulated U.P. Self-Financed Independent Schools (Fee Regulation) Act, 2018(U.P. Act 40 of 2018) restricting the  Managements not to enhance fee at their whims and wishes. The said act permits the Private Schools to  increase as under: 

//Permitted fee increase for existing students-A recognised school may revise its fee annually for its existing students by itself for each grade/class/level of school equivalent to average per centage per capita increase of monthly salary of teaching staff of previous year, but the fee increase shall not exceed latest available yearly percentage increase in consumer price index + five per cent of the fee realised from the student//. 

I request the Government to formulate an act in Our State in the similar lines, to protect the parents from exorbitant hike of fees by the Private School Managements. 

Further Rule 18(2) of  “TELANGANA EDUCATIONAL INSTITUTIONS (ESTABLISHMENT, RECOGNITION, ADMINISTRATION AND CONTROL OF SCHOOLS UNDER PRIVATE MANAGEMENTS) – RULES, 1993 issued vide G.O.Ms. No. G.O.Ms.No.1, Education (P.S.2), 01-01-1994 enumerates that following  factors/criteria  has be considered for  fixing tuition: 

(a) Expenditure involving payment of salaries and other benefit to the staff;

(b) Expenditure involving payment of rent for the building occupied by the institution and the upkeep of the building; 

(c) Expenditure involving electricity and water charges; 

(d) Expenditure involving office requirement like stationery, stamps etc;

 (e) Expenditure involving class room needs like chalk, dusters etc; 

(f) Expenditure involving purchase of books for the Library an chemicals and specimens for the laboratory. 

(g) Expenditure involving payments to the Auditors engaged for auditing the accounts: 

(h) Expenditure on contribution towards Education Cess: 

(i) Any other miscellaneous expenditure.  

Further in the G.O. 91 Education (S.E- PS-1) Department Dt: 06-08-2009,  the Government held that the  Tuition Fee shall be fixed basing on the salaries paid to the teachers and staff, retirement benefits, running expenditure, infrastructure and facilitates available. 

 In light of the above said rules, I submit that, as there is no physical functioning of  Schools since March, 2020, due to Covid-19 Pandemic, the corporate  schools which possess own buildings do not involve any such of the expenses shown above(para 9 &10), expect the 50% fee that they are paying to few teachers  those taking online classes. 

 Further I humbly submit the Rule 18(4) of ANDHRA PRADESH EDUCATIONAL INSTITUTIONS (ESTABLISHMENT, RECOGNITION, ADMINISTRATION AND CONTROL OF SCHOOLS UNDER PRIVATE MANAGEMENTS) – RULES, 1993 states that The fees collected from the students shall be allocated as to meet the following requirements:- 

a) 5% of the fees collected shall be earmarked as personal income to the management 

b) 15% of the fees collected shall be utilized for the maintenance of the institutions towards expenditure involving the building rent, electricity and water charges, stationery etc., required for the Office Payments to be made to menials and auditors, purchase of library books, chemicals, specimens and other material required for the laboratory and expenditure involving the upkeep of the institutions etc., 

c) 15% of the fees collected shall be earmarked for the developmental activates of the institution i.e. expenditure involving opening of additional courses, classes, sections and up-gradations of the institutions, construction of additional accommodations, acquiring costly equipment and furniture, purchase of land for the use of the institutions and the like; 

d) 50% of the fees collected shall be earmarked towards payment of salaries to the staff:

e) 15% of the fees collected shall be earmarked as management’s contribution towards staff benefits like gratuity, teachers provident fund, Group Insurance scheme etc.,

None of the Private School Managements are adhering to above provisions and most of the Managements are taking more than 40% of fees collected as personal income, more particularly during this pandemic situation  as they not paying salaries to all the staff. However we to admit that the Budget Schools are suffering as they are unable collect the fees from the parents, but it is not the situation with corporate schools which are collecting hundred percent fee from the parents. , 

13. Further I submit that Rule 18(5) of said 1993 Rules, states that the Educational agency shall maintain separate accounts in one or more banks for the amounts allocated for various purposes mentioned above so that the amount allocated for a specific purpose shall not be diverted for another purpose. These accounts opened as specified above shall be operated through joint accounts in the name of the Secretary/Correspondent, management of the Institution and the headmaster/Principal of the institution and Rule 18 (6) states  that  The amounts falling under items (a) to (e) of sub-rule 4 are subject to inspection and auditing by the Auditors appointed for the purpose by the Governing body. Further Rule 20 of said rule enumerates that the Educational agency shall submit the annual administration report in the prescribed proforma to the competent authority for very financial year by the 30th September at the latest. Such report shall be supported by the audited statement of accounts of the school duly audited by Chartered Accountant. Separate accounts shall be maintained for each school. Similarly the educational agency, which is running more than one school shall also submit such returns within the stipulated time to the competent authority. But none of the private schools are adhering to above rules  and none of Government bodies are factually inspecting those schools records and there is no proper mechanism and functionary body to supervise and audit the  private schools .

14. Further most of the Private School Managements are not constituting the Parents Teachers Associations or School ,Management Committees in terms of RTE Act 2009. Further most of the schools, without following the guidelines issued by the Government, are constituting School Management Committees by including their supporters, without knowledge of the parents of the school. 

15.  Lastly I would like to bring to the Government’s  notice that most of the corporate schools are collecting tuition fee on monthly basis, adhering to the G.O Rt. No.46   School Education(Gen-I)Department, Dt: 21-04-2020, without increasing fee. In this regard we submit that there was complete down of schools from March to June’,2020 and some of the schools commenced online classes from July’2020, as such when there is complete shut downs of schools from March to June 2020, and where the Schools have not paid salaries to any of its staff, the Government might have ordered for reduction of fees. The School Managements are collecting fees even for the months of March , April and May ’2020, where there was entire shutdown of affairs. The collection of school wee, when there was complete down of schools is not appropriate. 

   

Considering all the above aspects, I humbly request the Government  to pass appropriate orders, directing all the  Private School Managements in the State

To waive at least  40% tuition fees during the academic year 2020-21.

 

To fix the fee structure  of Private Schools in terms of Telangana Educational Institution (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983, and to Establish an Effective Mechanism for School Fee Regulation. 

To direct the Private School Managements not to enhance more than 3% fee per year  or to formulate any regulation in the lines of  regulation enacted U.P. Government. 

To direct the schools to strictly adhere to the provisions of RTE Act, 2009 and to constitute Parents Teachers Association, duly following the guidelines issued by the Government from time to time.

Thanking You, 

                  Yours truly

                      P.V.Kranthi Kiran, 

                                  B.Sc, LL.B, PGD-MISCA

                    Meerpet, Hyderabad

                  9490127914, 9542350436

Docket Writing in Splitup Cases

           IN THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE, _____________

CC 2/2008

Between:

State                                           Complainant

                               AND

1.  ……                                            A1

2……………                                   A2

3…………….                                  A3

4………………                               A4

                 .

                                                                                                                       

2.1.2008

Cognizance taken u/s 190  (1) (b) against

A1 to A4 for the Offence under Section 324 r/w 34 IPC. Issue SS to A1 to A4.  Call on 12.1.2008

                                                                                                                      Sd.xxxxxxxxx

                                                                                                                           JFCM                                                                           

                                                                           OR

Cognizance taken u/s 190(1) (b) against A1 to A4 for the offences under Section 324 r/w 34 IPC.  Issue SS to A1 to A3 and  NBW against A4.

(Note: The attendance of A1 to A3 was dispensed with during crime stage and A4 was not yet arrested nor he appeared before the court. Summons or NBW may be issued against A4)

12.1.2008

SS of A1 to A3

NBW of A4

 A1 to A3 SS served and are present in person.  Sri….Advocate filed MOA (Memo of Appearance) for A1 to A3. A4 NBW pending. Call on 20.1.2008

20.1.2008

A1 to A3 present.  A4 absent. NBW pending.  Police present and submitted that they are in pursuit of A4.  Police are directed to report on A4 by 20.2.2008.

                                                                                                                     

20.2.2008

A1 to A3 absent. Petition filed under section 317 cr.p.c and is allowed.  NBW of A4 pending. 

Address a letter to SP and mark a copy to the  SHO. Call on 20.3.22008

20.3.2008

A1 to A3 present.  NBW of A4 pending.  Police are directed to file separate set of case papers for separating the case of A4 Call on 3.4.2008.

3.04.2008

A1 A2 present.  NBW of A4 is pending.  A3 called absent and no representation for A3. Issue notices to sureties of A3 and NBW against A3. Call on 13.5.2008

13.5.2008

A1 A2 absent. Petition filed under section 317 cr.p.c and is allowed. A4 NBW pending. A3 NBW and SN pending. Police absent. Call on 22.5.2008

22.5.2008

A1 A2 present;  A3 A4 NBWs pending. Surety notices of A3 on sureties by name xyz and abc served and both sureties are present.  Both sureties requested in writing to grant one month time to produce A3. Time granted till 25.6.2008 to produce A3 Call on 25.6.2008.

25.6.2008                                                                

A1 A2 absent. Petition filed under 317 Cr.P.C and is allowed.  Sureties of A3 by name xyz and abc called absent and no representation and they failed to produce A3 before this court.  Both xyz  and abc failed to abide by the conditions of the bond undertaken by them and they failed to give any satisfactory explanation for continuous absence of A3 before this court.  The surety Bonds of abc and xyz stand forfeited. Both the sureties are levied a penalty equaling to the bond amount i.e. Rs.5000/- each.  The bond amount of Rs.5000 each lying in the FDRs is ordered to be collected as penalty and is ordered to be confiscated to the state. CMO put up. (Penalty should be collected under the head of ‘fine’. As and when the same is collected the same should be noted on the docket in red ink mentioning the details of the challan number, amount remitted and the date of the challan.)

[ If Fixed Deposit Receipts or cash solvencies are secured]

                                                                       OR

The bond amount of Rs.5000/- each is levied as penalty.  Both xyz and abc are salaried employees working in Government Department.  Hence, issue attachment warrant attaching the salary to the extent of Rs.1000/- per month from the salary of xyz and abc each till the amount of Rs.5000/- is recovered from each surety.

[If salary certificate is produced as security. Separate Cr.M.P.s should be opened for each surety and continued till the amount is recovered.]

                                                                       OR      

The bond amount of Rs5000- each is levied as penalty.  Both the sureties have secured their respective immovable properties for appearance of A3 in this case.  Hence, Issue warrant to the Collector for recovering the penalty amount of Rs.5000/- from each surety.{Issue warrant in Form 50 CR.P.C. with changes wherever required).[If immovable property is secured]                                         

                                                                   OR

The bond amount of Rs.5000/- each is levied as penalty.  Issue separate attachment warrants attaching the movables of xyz and abc and put them for sale 5 days after attachment if the penalty amount still remains unpaid, and report forthwith.  {If the court wants to proceed against the movables of the sureties in any situation. Issue warrants as in Form 50 CR.P.C.  with changes wherever required.]

NOTE:

1. The attachment warrant against movables can be entrusted to police or any other person. Refer Rule 185 of Criminal Rules of practice and Form 9 therein.

2. Open separate docket by giving a separate Cr.M.P. number for each surety and the docket shall be continued till the amount is recovered

Continuation of the main docket dt 25.6.2008:

Police  are directed to file copy of case papers to split up the case againstA3  and A4 without fail by  30.06.2008.A1 A2 present. Call on 30.06.2008

30.06.2008

A1 and A2 present. A3 and A4 are absent and NBWs are pending against them. Another set of Copies of case papers filed. Case against A3 and A4 is split up and is numbered as CC 166/2008.  For examination of A1 A2 u/s 239 Cr.P.C. call on 3.7.08

3.07.2008

A1 A2 present and are examined under Section 239 Cr.P.C. Charges against A1 and A2 for the offence u/s 324IPC r/w 34IPC,  are framed, read over and explained to them in vernacular to which they pleaded not guilty and claimed to be tried,  Issue SS to LW1 to LW4 by 13.7.2008.

13.07.2008.

A1 A2 present. Lw1 to Lw4 are examined as Pw1 to Pw4.  Ex P1 to P6, Mo1 are marked,  Issue SS to Lw5 to Lw8 by 20.07.2008. 

20.7.2008

A1 A2 present.  Lw6 to Lw8 are examined as Pw5 to Pw 7. Lw5 is given up by the APP. Prosecution Evidence is closed.  For 313 examination of A1 A2 call on 30,07.2008

30.7.2008.

A1 A2 are present and are examined under section  313 Cr.P.C. explaining the incriminating circumstances appearing against A1 and A2 in the evidence of prosecution witnesses which they denied and stated no defence evidence. Defence Evidence is closed.  For Arguments. Call on 2.08.2009

2.08.2009

A1 A2 present, Heard arguments on both sides.  For Judgment call on 4.08.2009.

4.08.2009.                                                                           

A1 A2 present.  Judgment pronounced in the open court vide separate order.  In the result, A1 and A2 are found guilty for the offence under section 324 r/w 34 IPC and they are convicted under section 248(2) Cr.P.C. [if the court chooses to proceed under  the P.O. Act 1958, at this stage it is not necessary to examine the accused on the quantum of sentence.  If the court chooses not to deal with the said Act, the court, as mandated under section 361 cr.p.c., shall record in the Judgment the reasons for not invoking the said act] Both A1 and A2 are questioned on the quantum of sentence and the same is recorded on a separate questionnaire. A1 and A2 are sentenced to pay a fine of Rs.1000/- each and in default of payment of fine they are sentenced to undergo simple imprisonment for three months each.  Out of the fine amount  a sum of Rs.1000/- is ordered as compensation payable to PW1 ‘sssssss’. A1 and A2 are also apprised of their right to prefer appeal against their conviction and on enquiry they stated that they have got means to engage a counsel to prefer an appeal. Bail Bonds of A1 and A2 stand cancelled. No property order is passed  in this case as the split up case CC… /… against  A3 and A4 is pending.

                                                                                                                                    JFCM 

Split up case docket

                                                                          

IN THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE, _____________

                                                     C.C. 166/2008

                                                                 IN

                                                         C.C.2/2008 

30.06.2008

A1 and A2 present. A3 and A4 are absent and NBWs are pending against them. Another set of case papers filed. Case against A3 and A4 is split up and is numbered as CC 166/2008.  For examination of A1 A2 u/s 239 Cr.P.C. call on 3.7.08

                                                          Sd xxx                                       

                                                          JFCM

………………………………………………………………………………………………

3.07.2008

A1 and A2 are absent and NBWs are pending against them

The police are directed to return the warrants for taking steps under 82 and 83 Cr.P.C. against A1 and A2. call on 15.07.2008

15.07.2008

A1 and A2 absent. Police returned the warrants unexecuted stating that the whereabouts of A1 and A2 are not known and that they are not residing in the known localities and they are evading the process of law and are absconding.  Hence Issue proclamation u/s 82 Cr.P.C. against A1  and A2. The police are directed to proclaim within 15 days from today for the appearance of A1 and A2 before this court on or before 6.08.2008.  The police are also directed to furnish property particulars of A1 and A2 for taking steps u/s 83 Cr.P.C. Call on 6.08.2008.

6.08.2008

 A1 and A2 absent. Report of proclamation u/s 82 Cr.P.C. filed by police and is duly proclaimed and is in order.  Report also filed by police u/s 83 Cr.P.C. along with a certificate of the Municipal Commissioner/MRO/District Collector/Ward Councilor/RDO etc., that both accused 1 and 2 do not possess or own any movable or immovable properties in the given locality.  Hence no  further steps can be taken u/s 83 Cr.P.C  A1 and A2 are hereby declared as proclaimed offenders and police are directed to make due publication of the same by 22.08.2008. For recording evidence u/s 299 Cr.P.C. issue ss to Lw1 to Lw6. call on 22.08.2008

Note.

1. If proclamation is not made, or if made is not in order, fresh proclamation should be ordered.

2. The court should see that proclamation is made by giving clear 30 days time for the appearance of the accused from the date of  making proclamation and not from the date of ordering the proclamation. 

3. The docket order itself should indicate by what date proclamation should be made and also the date of appearance of the accused before the court.

4. The proclamation shall be in writing and by way of drum of beat or tom tom.

5. It should be read in the locality of the absconding accused.

5. It should  be affixed at the houses/homesteads of the accused

6. The report of police u/s 82 should contain,

     a) Report containing the manner of publishing, the places where it was read and affixed, the engaging of a drum beater, the tom tom charges paid.

     b) Copy of proclamation along with the panchanama or the report of the police in whatever manner  it is filed shall contain the signatures of witnesses from those localities and court wherever it was read and affixed, as a proof of due proclamation in those localities.

      c) Tom Tom receipt

8. On the same day police may also file a report under s. 83 depending on which the court can proceed to take steps u/s 83.

9.If the proclamation is in order the court shall make a declaration declaring the absconding accused as proclaimed offender and direct the police to file report of public declaration as provided in s. 82 (4)and (5).

22.08.2008

SS of Lw1 to Lw6 served and they are examined as Pw1 to Pw6 respectively.  Ex P1 to P4 are marked. (Copies marked as originals were already marked in main CC.2/2008.) Evidence u/s 299 cr.p.c. is closed . Send a proposal to the Hon’ble district and Sessions Judge to omit the case altogether from the registers of this court or to convert the same into LPC (Long Pending Case)

                                                                 OR

             The evidence of Lw1 to Lw6 was already recorded as evidence of Pw1 to Pw6 respectively in the main CC 2/2008. The same is treated as evidence in this case.(In such cases it has to be verified whether all the evidence, including the evidence concerning these accused was adduced in the main case and there  is no need for examining any more witnesses.)Send……………………………………….(Same as above)

Note:

• The presiding officer should see that evidence  regarding all the accused  was adduced in the main case.
•  If evidence against the absconding accused was also adduced in the main case, it will not be necessary to again record evidence u/s 299 Cr.P.C. Basing on the evidence in the main case the court can mention remarks in the LPC proposal.
•  If no evidence was adduced against the absconding accused in the main case, the court may record evidence again u/s 299 Cr.P.C.

OFFICE NOTE ON THE DOCKET:

LPC proposal sent to the District and Sessions Judge vide Dis.No………… Date

2.10.2008:

Proceedings of the District and Sessions Court in Dis.No………….dt……..received in this court wherein permission is granted to convert this case into LPC.

               Hence this case is converted into  LPC and is numbered as LPC 1/2008.

                            Section Clerk record.                       

 

                                                                                                               xxxxxxxxxxxxxxx

                                                                                                                            JFCM

                                                                                

LPC Proposal should contain the particulars of each case as required in column no. 5 to 13 of Register of Long Pending Cases ( CR 25) and also should contain the remarks of the Officer sending the Proposal.

                                                             

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