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Kothakota Papayya and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1975CriLJ1784
AppellantKothakota Papayya and ors.
RespondentState
Excerpt:
.....under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - (1) when a summons issued by a court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by section 69 or section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct..........is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by section 69 or section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.(2) the affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the court.there is no affidavit of any one in this case showing service of the order on any of the petitioners. the prosecution rested.....
Judgment:
ORDER

Madhusudan Rao, J.

1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.

2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.

3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.

4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,

5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.

6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:

Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...

It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:

(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.

(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.

There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.

7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.


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