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B. Jagannatha Naidu and ors. Vs. the State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1972CriLJ438
AppellantB. Jagannatha Naidu and ors.
RespondentThe State of Andhra Pradesh
Excerpt:
.....the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance..........aside the order of the magistrate issuing attachment warrants on the ground that he had not given special reasons for issuing the same as required under the proviso to section 386(1) cr. p. c.3. proviso to section 386(1)(a) reads as follows:provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned and if such offender has undergone the whole of such imprisonment in default no court shall issue warrant unless for special reasons to be recorded in writing it considers it necessary to do so.before the proviso was introduced there was no restriction on the court from issuing the warrants for recovery of fine amounts in spite of the accused under-going in default sentences. even after the introduction of the proviso it does not mean that.....
Judgment:
ORDER

A.D.V. Reddi, J.

1. These two petitions raise a common point as to whether after the serving of the sentences in default of payment of fine imposed for an offence an order of attachment of property can also be passed under Section 386, Cr, P. C. without giving reasons.

2. The accused in S. T, C. No. 9 of 1969 and those in S. T. C. No. 10 of 69 on the file of the Munsiff-Magistrate. Huzurabad had been convicted of the offence under Section 188, I. P. C. and sentenced to Pay a fine of Rs. 25/- or in default to undergo simple imprisonment for two weeks. All the accused except accused 35 in S. T. C. 10 of 1970 had undergone in default sentences and yet the court issued warrants of attachment under Section 386(1)(a), Cr. P. C. for recovery of the fine amount due From each of the accused. On revision the learned Sessions Judge Karimnagar has made the references under Section 438 Cr. P. C. for setting aside the order of the Magistrate issuing attachment warrants on the ground that he had not given special reasons for issuing the same as required under the proviso to Section 386(1) Cr. P. C.

3. Proviso to section 386(1)(a) reads as follows:

Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned and if such offender has undergone the whole of such imprisonment in default no court shall issue warrant unless for special reasons to be recorded in writing it considers it necessary to do so.

Before the proviso was introduced there was no restriction on the court from issuing the warrants for recovery of fine amounts in spite of the accused under-going in default sentences. Even after the introduction of the proviso it does not mean that the undergoing of the default sentence operates as a discharge of satisfaction and the fine levied cannot be recovered. The recovery is discretionary and not mandatory as under section 547. Cr. P. C. but there must be special reasons for the recovery of the same. The special reasons to be given will depend on the circumstances of each case, It is therefore necessary that if the court thought that in spite of having undergone the default sentences the recovery of fine was also necessary, it should give special reasons.

In the present case no special reasons have been given. As the offence under Section 183 I. P, C. is for defying the prohibitory orders issued under Section 144 I. P. C. there can be no special reasons for the recovery of the fine in the present case. I, therefore accept the references and set aside the orders of the Magistrate issuing warrants for attachment of the property to recover the fine amounts under Section 386(1)(a), Cr. P. C. In the result the references are accepted, Except in the case of the accused 35 in S. T. C. No. 10 of 1969 and Sannaiah. accused No. 80 in S. T. C. No. 9 of 69 who has not undergone the default, sentence, the fines, if collected will be refunded to the accused.


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