Court cannot demand local surities, production of property documents, solvency certificate of Tahsildar etc,

Madras High Court - Sagayam @ Devasagayam vs State on 24 April, 2017

 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:   24.4.2017

CORAM THE HONOURABLE DR.JUSTICE  P.DEVADASS

Crl.M.P.No.3888 of 2017 in Crl.O.P.No.2891 of 2017

Sagayam @ Devasagayam                          ...   Petitioner/A-2         

. Vs ..

State rep. by The Inspector of Police, G-7 Chetpet Police Station, Chennai.  ...   ....Respondent/Complainant

Extract of relevant paras

57. In Motiram (supra) and in Raghubir Singh (supra) it was held that the bail condition should not be imposed in such a way that a rich man can go out of the jail on bail while a man who has no money, no property, who is unable to produce such surety shall suffer in jail.

58. Actually, our bail system is not based on any cash system. (See Motiram (supra), Raghubir Singh & Others (supra), Navaneetha Krishnan (supra) and Sundar @ Ashok (supra).

59. From the above, it is very clear that a Court cannot demand production of property documents from the accused, surety. Nowhere in Section 436 or 437 or 439 or 438 Cr.P.C. or in Form No.45 appended to Schedule II to the Code of Criminal Procedure, 1973, production of property document, title deeds, etc. either by surety or by the accused has been contemplated.

60. So a Magistrate or a Sessions Judge or any Court, demanding production of property documents or R.C. book or any other document to show proof of property either movable or immovable with respect to the bail bond or surety bond amount is against law. It is against Article 21 of Constitution of India. It is against the dictum of the Hon'ble Supreme Court judgment laid down in Maneka Gandhi vs. Union of India (supra).

61. The Courts demanding production of V.A.O. certificate, Residence certificate, Solvency Certificate or Tahsildar Certificate are not mentioned in the Code of Criminal Procedure. These are all creations and inventions of certain Courts. It is clear that these are all not out of any judicial thinking. It is out of an useless thinking curbing the liberty of the individual.

62. Some Courts insists that the surety should be a Government servant or a public servant or a person permanently employed in a reputed concern. This is not at all mentioned in the Code of Criminal Procedure. These are all inventions not by the Code but by some courts. It cannot be said that all Government servants, public servants are Buddas. There are many Government servants who are cheats. In many cases under Section 420 I.P.C., many Government servants are figuring as accused.

 
63. There are many private individuals having sterling qualities. Mahatma Gandhi is not a Government servant. But he is Father of our Nation. Yet, as per the present practice being adopted by certain criminal Courts, even Mahatma Gandhi cannot be accepted as a surety. Simply because a person is poor, who has no property, no money, no job, it cannot be said that he is disqualified to stand as a surety.

64. Chapter 33 of the Code does not say that the surety should be a member of the family or a blood relative. Court cannot insist that the sureties should be local surety. Suppose if the accused belongs to a different district, different State or even a foreigner or the accused is a business man or working here such as Nepalies, Biharies, etc. who will not have local sureties, their relatives are also in Bihar etc., it will be difficult for them to secure local sureties.

 
65. In Motiram (supra), the Hon'ble Supreme Court stated that India is a Bharat, any person, from anywhere in India can stand as surety.

66. As per section 441(4) of Cr.P.C. a surety should be a fit person. Who is a fit person has not been defined or explained anywhere in the Code. Generally, a surety must be a genuine person. He should not be a bogus person. A surety comes to the Court and gives undertaking to the Court that he will ensure the appearance of the accused. If the accused fails to appear before the Court, the surety bond executed by the surety will be forfeited.

67. Court can ascertain the genuineness of the sureties. A surety should have a genuine address. He may be asked to produce residential proof. He should not be a vagabond. He should establish his identity. A poor man can be a voter. Likewise, a poor man can be a surety. A surety can be a person without having own house. He can be a tenant. Even a person living in a platform, living in a slum having an acceptable address proof can also stand as a surety.

68. It cannot be denied that a bogus person should not be accepted as a surety. A person who is offering surety must have acceptable residential proof. He may be a tenant, licensee. A beggar can also stand as surety provided he should have some acceptable residential proof.

69. Sometimes, one person may come forward to stand as surety for more than one accused. For example, if two sons or two brothers stand as sureties to an accused, his father, brother, mother, sister etc. may come forward to stand as surety. In such circumstances, question may arise whether the father can chose any one of his son and stand as surety and exclude his other son.

70. In this connection, Section 441-A Cr.P.C. contains guidance. It runs as under:
''Declaration by sureties- Every person standing surety to an accused person for his release on bail, shall make a declaration before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars.'' [emphasis supplied by me] 

71. This court and other Courts while granting bail, directs the accused to execute bail bond for Rs.5000/-, Rs.10,000/- Rs.15,000/-, Rs.20,000/- etc. and also produce sureties who should also execute a bond for similar amount. In view of the present value of the properties, it is very difficult to get property document for such value.

 
72. When superior Courts grants bail directs the accused to execute bail bond by himself as well as by the sureties. Unless otherwise stated, in the bail or anticipatory bail order, as the case may be, 'bond' means personal bond. In such circumstances, the Courts directing the sureties to produce property documents is beyond the scope of the bail order of the superior court.

 
73. Court should be satisfied as to the genuineness, identity of the surety and his residential address. It is equally applies to the accused. For this purpose, the Court can accept copy of anyone of the following documents after verification.
1 Passport 2 Ration Card 3 PAN card 4 Driving license 5 Voter's ID 6 Aadhaar Card 7 Photo ID issued by a recognised Educational Institution 8 Photo credit card 9 Kissan Photo Passbook 10 Pensioner's Photo card 11 Freedom fighter photo card 12 Identity Certificate with photo issued by a Gazetted officer or Tahsildar 13 Address card with photo issued by the Postal Department 14 Disability ID card or handicapped medical certificate issued by the Government
15. NREGS Job Card
16. CGHS/ECHS/State Government/ESIC Medical Card
17. Marriage Certificate issued by the Government 18 Post Office Statement or Passbook
19. Water Bill 20 Electricity Bill 21 Property Tax Receipt 22 Landline Telephone Bill 23 Credit Card Statement 24 Income-tax assessment order 25 Arms License
26. Certificate of Address issued by the head, Village Panchayat or an equivalent authority
27. Registered Lease/Sale/Rent Agreement
28. Caste and Domicile Certificate that has photo issued by the State Government
29. Gas Connection Bill 30 Insurance Policy 

74 From the above analysis, we come to the conclusion that when the accused executes bail bond, when the surety executes surety bond, Court cannot insist production of property documents, surety need not be a Government servant or a blood relative or a local surety.

Doctrine of Fraud - An Apex Court citation.

S P Chengalverau Vs Jagannath – (1994) 1 SCC 1, t

While allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as 'wholly perverse', Kuldip Singh, J. stated:

 "The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan- dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation".          (emphasis supplied)

The Apex Court proceeded to state: "A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party".

Every court has inherent powers to recall such judgment /order where Order / judgment is alleged to have been obtained by fraud – suppression of facts – misrepresentation; or where it is brought to the notice of the Court that the Court itself has committed a mistake.

The Court concluded: "The principle of 'finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants".

Judgment or Order of a Court obtained by fraud is a nullity and non-est in law.-A.V. Papayya Sastry v. Govt. of A.P.; (2007) 4 SCC 221

Judgment or Order of a Court obtained by fraud is a nullity and non-est in law.-A.V. Papayya Sastry v. Govt. of A.P.; (2007) 4 SCC 221

Apex Court observed that such judgment and decree obtained by playing fraud - can be challenged in any court at any time and when a judgment is obtained by a fraud, this is an exception to Article 141 of the Constitution of India and doctrine of merger-

“If any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. A judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.”

Maintainability of Suit for declaration as legal-heir without citing any defendant i.e., against whomso-ever and without seeking any further relief.

V. Hanya Naik and ors. Vs. M. Krishna Reddy and ors.


AP High Court Decided On : Sep-11-2009 Reported in : 2009(6)ALT221

Judge : L. Narasimha Reddy,


: C.R.P. Nos. 4778 and 4867 of 2008

Appellant : V. Hanya Naik and ors. Respondent : M. Krishna Reddy


Judgement : ORDER L. Narasimha Reddy, J. 1. In the recent past, the prices of land in and around the city of Hyderabad have increased in geometrical proportions. The unprecedented growth has naturally brought along with it, litigation of peculiar nature, divorced from settled principles of law. This tendency is more acute in various Courts in Ranga Reddy District. The case on hand presents an illustration. 2. The petitioners filed O.S. No. 150 of 2007 in the Court of Junior Civil Judge, Parigi, Ranga Reddy District, with a prayer to declare that, they are the surviving legal heirs of late, V. Rashya Naik, alias Rasiya, s/o. Puriya, @ Ponia Lambada. No one was impleaded as defendant, and it was filed against 'all concerned'. The suit was decreed on 17-03-2008. 3. Respondents 2 and 3 herein filed I.A. No. 222 of 2008 with a prayer to implead them as defendants in the suit. I.A. No. 223 of 2008 was filed under Order 9 Rule 13 C.P.C., with a prayer to set aside the ex parte decree dated 17-03-2008. Since there was delay in filing that application, they filed I.A. No. 186 of 2008, under Section 5 of
the Limitation Act, with a prayer to condone the delay of 61 days. The petitioners opposed these applications. Through common order dated 12-08-2008, the trial Court allowed the applications. These two revisions are filed against the orders in I.A. Nos. 222 and 223 of 2008, respectively. 4. Sri R. Chandrasekhar Reddy, learned Counsel for the petitioners, submits that, in case the respondents have rights, vis-a-vis any property, they have to work out the remedies by filing suits, or instituting proceedings. He contends that the trial Court was not at all justified in impleading the respondents 1 and 2, or setting aside the ex parte decree. 5. Sri N. Subba Reddy, learned Counsel appearing for the respondents, on the other hand, submits that the petitioners have grossly misused the process of Court in filing the suit and obtaining an ex parte decree. He contends that though an innocuous prayer was made for declaration, that they are the legal heirs of one, Mr. Rasiya, the petitioners started pressing that decree into service, before the various authorities under the A.P. Rights in Land and Pattadar Pass Books Act (for short 'the Act;) 6. The prayer made by the respondents (sic. petitioners) in their suit is for, (i) 'Declaring the plaintiffs that they are the sole and surviving legal heirs of Late Sri V. Rashya Naik, alias Rasiya, s/o. Puriya @ Poniya Lambada; (ii) granting costs of the suit; and (iii) and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case, in the interest of justice. 7. From this, it becomes clear that they prayed for a mere declaratory relief. It is relevant to mention that, neither any schedule was attached to the plaint, nor any individual was cited as defendant. It was not a petition under the Indian Succession Act. It is just unundestrandable as to how the trial court numbered the suit, though no defendants were shown in it. In para 5 of the plaint, the petitioners clearly stated that the necessity for them to file the suit has arisen on account of the fact that their claim was not being accepted by the Mandal Revenue Officer, Chevalla, in respect of the lands held by Rasiya. It was also mentioned that Rasiya left an estate. In this background the petitioners were under obligation to mention the particulars of the estate, as regards which, the succession was claimed, and to implead the individuals or officials, who disputed their right to succeed to the estate of late Rasiya. On both the counts, the plaint was silent. 8. The suit was notionally valued at Rs. 3,000/-, and the trial Court has generously accepted that, without any further verification. Assuming that the suit was not defective, either as regards the mentioning the property, or as to the presence of the parties against whom the relief is claimed, a serious legal infirmity was glaring on the face of it. The petitioners did not claim any relief ancillary or subsidiary to the one, of declaration. Section 34 of the Specific Relief Act reads as under: Discretion of Court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the
plaintiff need not in such suit ask for any further relief:Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. 9. From a perusal of the proviso, it becomes clear that no Court shall grant the mere relief of declaration, if the plaintiff, being in a position to claim other relief; did not pray for it. Even a vague idea about this provision would have persuaded the trial Court, to refuse numbering of the suit. As pointed out at the threshold, the sky rocketing of prices of land has manifested its effect in various fields, including the approach of the Courts, in deviation of the settled norms. 10. Had the petitioners been satisfied with the decree and did not claim any rights, vis-a-vis any property, nobody would have felt aggrieved by that. The record discloses that the petitioners pressed the decree, in the suit, into service, in the various proceedings under the provisions of the Act. The respondents naturally felt aggrieved by this ex parte decree, and they approached the trial Court with proper applications. At least, at a belated stage, the trial Court realized the mistake committed by it earlier, and ordered the interlocutory applications filed by the respondents. The petitioners cannot be said to have suffered any detriment on account of the orders. The maximum that can now happen is that, the decree, that was obtained by the petitioners by resorting to procedure, not recognized by law would be set aside, and proper adjudication, with reference to the relevant provisions of law, would take place. 11. It is hoped that the Civil Courts, particularity in the districts, where the value of the land has increased substantially, in the recent past, would evince required amount of interest and attention before the suits filed in respect of the immovable properties are numbered, lest, the innocent citizens become victims of the ingenious methods resorted to, by vested interests. 12. The revisions are accordingly dismissed. Before proceeding with the suit further, the trial Court shall satisfy itself, as to whether the suit accords with the relevant provisions of law. 13. There shall be no order as to costs.

Recall of witness

Excise act cases whether bailable or non bailable . Citation clarifying the same

Andhra High Court
E. Mallaiah vs The State Of A.P., (Through Proh. & ... on 4 February, 2003
Equivalent citations: 2003 (1) ALD Cri 726, 2003 (2) ALT Cri 366
Author: K Bhanu
Bench: K Bhanu
ORDER K.C. Bhanu, J.
1. It is the case of the prosecution that the Excise Police visited the licensed toddy shop of the petitioner. They suspected adulteration of toddy and therefore, they drew some samples and sent them to the concerned authority for analysis. The analyst after analysis gave opinion that the toddy sample contained Diazepam and therefore it was adulterated. The violations against the present petitioner are under Rules 24 and 34 of the A.P. Excise (Arrack and Toddy Licence General Conditions ) Rules 1969, and under Section 36 read with Section 81(1)(b) of the A.P. Excise Act, 1968.
2. Rule 24 of the above said Rules deals with drawal of samples while Rule 34 deals with the power of Excise Officials to enter and inspect any shop and test arrack or toddy therein. There is no Section 81(1)(b) of the A.P. Excise Act. The Act contains only 73 Sections in all.
3. Section 36 of the Excise Act deals with penalty for misconduct of licensees etc. The charge levelled against the petitioner is under Section 36 of the A.P. Excise Act whereunder the maximum imprisonment does not exceed two years.
4. Learned counsel for the petitioner contended that as there is no classification of offences under the A.P. Excise Act as to whether they are bailable or non-bailable, one has to look into the schedule of the Code of Criminal Procedure. The learned Public Prosecutor did not deny or dispute the same.
5. As rightly contended by the learned counsel for the petitioner, in the absence of classification of the offences under the A.P. Excise Act, viz., whether they are bailable or non-bailable, regard should be had to Schedule II of the Code of Criminal Procedure, which provides for classification of offences against Laws other than the Indian Penal Code, in order to ascertain whether a particular offence under the A.P. Excise Act is bailable or non-bailable. As per that Schedule, if an offence is punishable with imprisonment for less than three years, the offence is bailable. As I have already observed above, the charge levelled against the petitioner is under Section 36 of the A.P. Excise Act and since the maximum imprisonment provided thereunder is less than two years, the offence is bailable. Therefore, Section 438 Cr.P.C. has no application to the facts of the case, and hence the present petition for anticipatory bail is not maintainable, inasmuch as the offence alleged against the petitioner is bailable.
6. In the result, the petition is dismissed.

Failure of the party to claim the notice sent  through  Registered Post to his last known address would therefore qualify as “ deemed service”
D.Vinod Shivappa Vs Nande Belliappa (1) 2006(3) ALT (Crl) 276 SC = 2006 6 SCC 456
2015 (4) ALT 447, CRP 4904 ofd 2013  Pushmala Reddy Vs Janga Raghava Reddy.

Section 9 of AP Gaming Act - What property to be confiscated

Andhra High Court

Pendam Narender S/O P. Venkaiah ... vs The State Of Telangana Rep By Its ... on 22 September,

2014

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO

WRIT PETITION No. 23680 OF 2014

22-09-2014

Pendam narender S/o P. Venkaiah R/o Jerripothulagudam Village Chilkur Mandal

Nalgonda District Petitioner

The State of Telangana Rep by its Principal Secretary, Home Department,

Secretariat Hyderabad and 1 another..Respondents

Counsel for the Petitioner:Sri Mohd. Mumtaz Pasha

Counsel for the Respondents :GP for Home (TG)

 HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO

WRIT PETITION No.23680 OF 2014

ORDER:

The petitioner sought for a Writ of Mandamus declaring that the seizure effected, by the second respondent-Station House Officer, Police Station Chilkur, Nalgonda District, of the motor vehicle bearing No. AP 24 UDTR 7583 Hero Honda HF Deluxe make and trying to auction the said vehicle

in connection with case S.T.C No.206 of 2014 as arbitrary.

The petitioner who has claimed to have purchased a motorcycle on 16.04.2014 is a post graduate  tudent of M. Pharmacy. As per the temporary certificate of registration issued by the Andhra Pradesh Transport Department, the name of the owner of the vehicle is shown as Sri Pendam Narender, the petitioner herein. The vehicle is under hypothecation with Sri Manikanta Auto Finance, Munagala. The invoice raised by Sri Krishna Motors, Miryalaguda, Nalgonda District, authorized dealer of Hero Honda Motor Vehicles issued on 15.04.2014 also disclosed that the vehicle is purchased by the petitioner herein. It is the case of the petitioner that on 17.07.2014, he went to his native village Jerripothulagudem Village in Chilkur Mandal, Nalgonda District and at about 04.00 PM, he went to his agricultural fields on his motorcycle and parked the said motorcycle nearby the fields and went into his agricultural fields. It appears, at about 17.00 hrs on 17.07.2014, the Sub-Inspector of Police, Chilkur Police Station raided the agricultural fields of Sri Gandu Ramayya which are located at the outskirts of Jerripothulagudem Village, where, four persons were found playing cards by betting money. The police have apprehended all the four persons, one of whom is Pendem Venkanna, the father of the petitioner herein. The police seems to have seized cash of Rs.9,820/- and the playing cards and also seized the motorcycle bearing registration No. AP 24 UDTR 7583 and four mobile phones from the spot under cover of a panchanama in the presence of mediators and brought them to the police station at 18.30 hours. A case was booked against the four  offenders under Section 9(1) of the Andhra Pradesh Gaming Act, 1974. All the four persons were produced before the learned Judicial Magistrate of First Class, Kodad on 18.07.2014. On the same day, the learned Judicial First Class Magistrate, Kodad, passed orders in S.T.C No. 206 of 2014.

Since the accused have pleaded guilty for the office under Section 9(1) of the Andhra Pradesh  Gaming Act, 1974, the voluntary admission of guilt made by them has been accepted and the accused A-1 to A-4 are convicted under Section 252 Cr.P.C and they are sentenced to pay a fine of Rs.250/- each and in default to suffer imprisonment for 15 days. The seized cash of Rs.9,820/- was ordered to be confiscated to the State. The playing cards and one counting paper were ordered to be destroyed after expiry of the appeal time. The unmarked property, including the motorcycle and the four mobile phones seized from the accused were ordered to be confiscated to the State after expiry of appeal time. The accused have paid the fine of Rs.250/- imposed on each of them. It appears, when the petitioner has filed an application in Crl.MP.No.2469 of 2014 in S.T.C.No.206 of 2014 seeking release of the motorcycle, the learned Judicial Magistrate of First Class, Kodad, dismissed the said petition by his order passed on 05.08.2014 setting out that when the accused were convicted and the seized property including the petition schedule property were ordered to be confiscated to the State after expiry of the appeal period and when the confiscation orders are passed in accordance with Section 8 of the Gaming Act, the said application moved by the petitioner seeking release of the motor vehicle as not maintainable. Hence, this writ petition is filed.

The Andhra Pradesh Gaming Act, 1974, henceforth referred to, for short as Act, has been made providing for punishment for gaming and for keeping the common gaming houses in the State. Section 2 defined various expression mentioned in the Act. The expression gaming has been defined

in Subsection 2 in the following words: (2) gaming means playing a game for winning of prizes in money or otherwise and includes playing a game of mutka or satta and lucky board and wagering or betting; except where such wagering or betting takes place upon the horse race-

(i) on the day on which the horse-race is to be run;

(ii) in an enclosure which the stewards controlling the horserace (or race meeting) have, with the  sanction of the Government set apart for the purpose; and(iii) (a) with a licensed book maker; or (b) by means of a totalisator; But does not include a lottery;

Subsection (4) of Section 2 defined the expression Instruments of gaming as under: Instruments of gaming includes cards, dice, gaming tables, or cloths, boards or any other article used or intended to be used as a subject or means of gaming, any document used or intended to be used as a register or record or evidence of any gaming, the proceeds of any gaming and any winnings or prizes in money or otherwise, distributed or intended to be distributed in respect of any gaming. The expression common gaming house is defined in Subsection (1) of Section (2). Clause (2) thereof reads as under:

in the case of any other form of gaming, any house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room, tent, enclosure, vehicle, vessel or place, whether by way of charge for the use of such house, room, tent, enclosure, vehicle, vessel or place or instruments of gaming or otherwise howsoever;

From the above definitions, it emerges that, playing a game for winning of prizes in money attracts

the expression gaming. Similarly, playing cards and other articles used or intended to be used as a

subject or means of gaming attract the definition of instrument of gaming. A vehicle or a vessel in

which any instruments of gaming are kept or used for the profit or gain of the person owning, such

vehicle, whereby charge for the use of such vehicle or vessel attracts the definition of common

gaming house.

Section 3 has provided penalty for opening a common gaming house. It has provided imprisonment for a term which may extend to six months and with fine which may extend to one thousand rupees for the first offence and imprisonment for a term which may extend to one year and with fine which may extend to two thousand rupees for every subsequent offence. Section 4 provided for penalty for being found gaming in a common gaming house. Section 6 provided for an adverse presumption to be drawn where instruments of gaming are found at a place entered or searched under Section 5 by any police officer not below the rank of Assistant Commissioner of Police within the City of Hyderabad and the Deputy Superintendent of Police elsewhere and to presume such a place is used as a common gaming house and that the persons found therein were present there for purposes of gaming although no gaming was actually seen by the police officer or any of his assistants. Section 8 provided for instruments of gaming found at a common gaming house or on or about the person found therein, to be forthwith destroyed or forfeited upon conviction of any such person. Clause (2) of Section 8 also enabled an order to be made upon conviction, all or any of the securities for money and other articles seized, not being instruments of gaming to be sold and the proceeds thereof together with all moneys seized to be forfeited. Section 9 provided for the penalty for gaming.Therefore, all the important provision to be considered in the above case is contained in Section 8,which reads as under: Instruments of gaming etc., found in a common gaming house may be ordered to be destroyed or forfeited on conviction:-On conviction of any person for opening, keeping or using or permitting the use of a common gaining house, or gaming therein or being present for the purpose of gaming, the convicting magistrate, (i) may order all the instruments of gaming found therein or on or about the person found therein, to be forthwith destroyed or forfeited; and (ii) may order a. all or any of the securities for money and other articles seized, not being instruments of gaming, to be sold and the proceeds thereof with all moneys seized to be forfeited; or b. any part of such proceeds, and other moneys to be paid to any person appearing to be entitled thereto.

Section 8 has provided for two separate components. The first dealt with the instruments of gaming found at the common gaming house or on or about the person found therein. Upon conviction of such a person, such instruments of gaming may be ordered to be destroyed or forfeited. While the  second limb provided for all or any of the securities for money and other articles seized, not being instruments of gaming to be sold and the proceeds thereof with all moneys seized to be forfeited. Therefore, for the second limb of Section 8 to come into play, the charge that must be laid against the accused should clearly bring out, that the various other articles which have also been seized at the common gaming house and or on or about the person found therein are actually the articles which are used as security for money. Then, they can be ordered to be forfeited upon being satisfied that such articles are used as security for money by the person who was convicted. Further, Clause (ii)(b) enables any part of such proceeds can be paid to any person appearing to be entitled thereto. In other words, before any articles which are seized or ordered to be forfeited, they must be specifically charged as to have been used as a security for the money by the person who is found indulging in the act of gaming and who has been convicted under Section 9 for that offence. In the instant case, the four accused persons in S.T.C.No.206 of 2014 have undoubtedly been convicted for the offences under Section 9 of the Act. But, there is no charge laid against them that the motorcycle and the four cell phones seized at the common gaming house are used by any or all of them as securities for money. In the absence of any such charge laid against the accused, the learned Judicial Magistrate of First Class, Kodad, could not have ordered them to be forfeited. Further, the motorcycle is clearly owned by the petitioner. May be it must have been found at the common gaming house which was raided by the police and further may be that the first accused is none other than the father of the writ petitioner. But, so long as no charge is laid that this motor vehicle is used as a security for money, it could not have been ordered to be forfeited by the Magistrate, under Section 8 of the Act. Admittedly, the motorcycle and the four cell phone instruments are not attracted to the definition of instruments of gaming. Hence, so long as the articles are not used as securities for money, Clause (ii) of Section 8 does not get attracted. Assuming for the sake ofargument, that after conclusion of trial, as per Section 452 Cr.P.C, the Court may make such order for the disposal, by destruction or confiscation of any property which is produced before it, but then such property should have been used for the commission of any offence. Thus, so long as the property produced before the Court is not alleged to have been used for commission of any offence, as is also required, incidentally by Section 8 of the Act, such property is liable to be delivered to the person entitled to possession thereof. Therefore, the order passed by the learned Judicial Magistrate of First Class, Kodad, on 18.07.2014 in ordering forfeiture of the motor vehicle and the four cell phones went beyond his jurisdiction. To that extent, the order passed by the learned Judicial Magistrate of First Class, Kodad on 18.07.2014 in S.T.C.No.206 of 2014, is unsustainable and accordingly, the order of the learned Judicial Magistrate of First Class, Kodad in S.T.C. No.206 of 2014, to the extent of ordering for forfeiture of the motor vehicle bearing registration No. AP 24 UDTR 7583 and the four cell phones is set-aside being unsustainable and accordingly, in order to serve the ends of justice, the second respondent-police is directed to restore them to their originalowners immediately.

To the extent indicated supra, the writ petition stands allowed. No costs.

_______________________________ NOOTY RAMAMOHANA RAO, J 22.09.2014

In rejection of plaint -- Regular Apeal U/sec 96 CPC lies not CMA U/se 104 CPC

Andhra High Court
Sompalli Venkatarathnam And Ors. vs Kilari Lingaiah And Ors. on 24 June, 2004
Equivalent citations: 2004 (4) ALD 558, 2008 (2) ALT 598
Author: L N Reddy
Bench: L N Reddy
JUDGMENT L. Narasimha Reddy, J.
1. This matter is placed before the Court on a note put up by the office, in relation to maintainability.
2. The appellants filed a suit claiming various amounts towards damages. The appellants are the
owners of the lands in various survey numbers in Chellapanaidupalli Village of Nellore District. It is
their case that the lands in neighbouring survey numbers, belonging to the defendants, were
converted into fish and prawn tanks and thereby the lands of the appellants were rendered unfit for
cultivation. The Trial Court rejected the plaint through its order dated 17-3-2004, on taking the view
that the causes of action for the individual appellants herein are different, and single suit by all of
them cannot be maintained. It was also pointed out in the order that, if individual claims are taken
into account, the corresponding suits have to be filed in the Court of Junior Civil Judge, having
territorial jurisdiction over the matter,
3. The appellants filed the C.M.A., under Order 43, Rule 1 C.P.C. against the order rejecting the
plaint. The office raised an objection to the effect that appeal under Order 43, Rule 1, cannot be
maintained, against such an order. Learned Counsel for the appellants re-presented the matter with
an endorsement to the effect that the rejection of plaint is a deemed decree under Section 2(2) of
CPC, and as such CMA under Order 43, Rule 1 C.P.C., is maintainable.
4. Sri A. Chandraiah Naidu, learned Counsel for the appellants submits that though an order
rejecting plaint is included in the definition of decree, under Sub-section (2) of Section 2 of C.P.C., it
cannot be treated on par with a decree in the normal parlance, for the purpose of deciding the forum
of appeal. Placing reliance upon a judgment of this Court, in Ragam Yellaiah and Ors. v. Chinta
Shankamiah, 2003 (3) ALD 105, learned Counsel submits that a distinction has to be maintained in
decrees as such, and deemed decrees, at least, in the context of deciding the appellate forum. He also
contends that rejection of the plaint on the ground that separate suits are to have been filed, cannot
be treated as a final pronouncement on the rights of the parties, and the order deserves to be treated
as the one, of returning the plaint. On this premise, learned Counsel submits that the appeal is
maintainable under Rule 1(a) of Order 43.
5. The Trial Court undertook extensive discussion after hearing the Counsel for the plaintiffs,
rejected the plaint mainly on the ground of mis-joinder of parties. It was of the view that the causes
of action for the individual appellants/plaintiffs are different. The extent and location of the lands of
individual appellants varied from one another. It was also observed that the grievance of each
plaintiff is against an identified defendant, and not collective against all the defendants.
6. It is not in dispute that the rejection of the plaint is under Rule 11 (d) of Order 7 C.P.C. An appeal
is provided for under Order 43, Rule 1 (a) C.P.C., only against orders returning the plaint, and not
Sompalli Venkatarathnam And Ors. vs Kilari Lingaiah And Ors. on 24 June, 2004
Indian Kanoon - http://indiankanoon.org/doc/1864314/ 1

Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act * S. 3(1)(x) – Offence under Act – Significance of place.

Acts amounting to insult or humiliation to members of Scheduled Castes and Scheduled Tribes should be visible and audible to public, otherwise it would not amount to offence – Alleged incident of insult or intimidation took place inside house of applicant and not in the public place – Not an offence. (Uday Singh Ram Singh Pawar v. State of Maharashtra & Anr.; 2009 Cri.L.J. (NOC) 783 (Bom)

Possession – Co-sharer has right to transfer his undivided share but cannot put under in possession without physical partition of the undivided landed property.

Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of the Court in M.V.S. Manikayala Rao v. M. Narasimhaswami and Others; AIR 1966 SC 470, wherein the Court stated as follows:

“Now, it is well settled that the purchaser of a co parcener’s undivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the coparcener whose share he had purchased.” (Ramdas v. Sitabai & Others; 2009(107) RD 780