Whether sanction under Section 197 of The Code of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC') is required to initiate criminal proceedings in respect of offences under Sections 420, 468, 477A, 120B read with 109 of the Indian Penal Code (45 of 1860) - No -That question is no more res integra -The question is not whether they were in service or on duty or not but whether the alleged offences have been committed by them "while acting or purporting to act in discharge of their official duty" -The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding -The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue- The learned Magistrate has correctly taken the view that if at all the said view of sanction is to be considered, it could be done at the stage of trial only. -2015 S.C. MSKLAWREPORTS

while they were working as  Sub-Registrars  in  various
offices in the State of Andhra Pradesh, they conspired  with  stamp  vendors
and document writers and other staff to gain monetary benefit  and  resorted
to manipulation of registers and got the registration of the documents  with
old value of the properties, resulting in wrongful gain  to  themselves  and
loss to the Government, and thereby cheated the public and the Government.

The District Registrar, Vijayawada lodged a complaint with the Inspector  of
Police, CBCID Vijayawada on 07.07.1999.
On the basis of the complaint, F.I.R. No.  35/1999  was  registered  by  the
appellant,  and  after  investigation,  report  under  Section  173(2)  CrPC
against 41 persons including the respondents herein,  was  submitted  before
the  III  Additional  Chief   Metropolitan   Magistrate,   Vijayawada.  

The respondents raised the objection that there was no  sanction  under  Section
197 CrPC and hence the proceedings could not be initiated.

Learned Magistrate on 03.07.2007 passed an order holding that:

"Whether the sanction is required under Section 197  Cr.PC.  or  not  to  be
considered during the trial and it is  the  burden  on  the  complainant  to
prove that the accused acted beyond in discharge of  their  official  duties
and there is no nexus between the acts committed and their  official  duties
and at this stage the question that the accused acted  within  their  duties
cannot be decided."

Aggrieved, respondents moved the High Court under Section 482  CrPC  leading
to the impugned order whereby the criminal proceedings were quashed  on  the
sole ground that there was no sanction under Section  197  CrPC,  and  hence
the appeals.

No doubt, while the respondents indulged in the  alleged  criminal  conduct,
they had been working as public servants. 
The question is not  whether  they
were in service or on duty or not but  whether  the  alleged  offences  have
been committed by them "while acting or purporting to act  in  discharge  of
their official duty"

That question is no  more  res  integra

"5. The question is when the public servant is  alleged  to  have  committed
the offence of fabrication of record  or  misappropriation  of  public  fund
etc. can he be said to have acted in discharge of his  official  duties.  It
is not the official duty of  the  public  servant  to  fabricate  the  false
records and misappropriate the public funds etc. in  furtherance  of  or  in
the discharge of his official duties. The  official  capacity  only  enables
him to fabricate the record or misappropriate the public fund etc.  It  does
not mean that it is integrally connected  or  inseparably  interlinked  with
the crime committed in the course of the same transaction, as  was  believed
by the learned Judge. Under these circumstances, we are of the opinion  that
the view expressed by the High Court as well as by the trial  court  on  the
question of sanction is clearly illegal and cannot be sustained."

"38. The question relating to the need of sanction under Section 197 of  the
Code is not necessarily to be considered as soon as the complaint is  lodged
and on the allegations contained therein. This question  may  arise  at  any
stage of the proceeding. The question whether sanction is necessary  or  not
may have to be determined from stage to stage."

"74. ... Public servants are treated as a special class of persons  enjoying
the said protection so that they can perform their duties without  fear  and
favour and without threats  of  malicious  prosecution.  However,  the  said
protection against  malicious  prosecution  which  was  extended  in  public
interest cannot become a shield to  protect  [pic]corrupt  officials.  These
provisions being exceptions to the equality  provision  of  Article  14  are
analogous  to  the  provisions  of  protective  discrimination   and   these
protections must be construed very  narrowly.  These  procedural  provisions
relating to sanction must be construed in such a manner as  to  advance  the
causes of honesty and justice and good governance as opposed  to  escalation
of corruption."


The alleged indulgence of the officers in cheating, fabrication  of  records
or misappropriation cannot be said to be  in  discharge  of  their  official
duty. Their official duty is not to fabricate records or permit  evasion  of
payment of duty and cause loss  to  the  Revenue.  Unfortunately,  the  High
Court missed these crucial aspects. The  learned  Magistrate  has  correctly
taken the view  that  if  at  all  the  said  view  of  sanction  is  to  be
considered, it could be done at the stage of trial only.

Resultantly, the impugned orders are set aside.  Appeals  are  allowed.-2015 S.C. MSKLAWREPORTS

Or.VI, rule 17 C.P.C.- trial completed - in the midst of the arguments - filed petition for amendment of plaint to claim the relief of declaration of title and also for the relief of correction of record of rights in favour of the petitioners - Trail declined as highly belated - their lordships of Telangan held that They have slept over various stages for a period of ten years and leisurely filed the application for amendment after completion of the trial and more than one year after commencement of the arguments. These facts would clinchingly establish that the mandatory requirement of satisfying the Court, that despite due diligence, they could not have filed the application for amendment earlier, has not been satisfied by the petitioners. The lower Court has, therefore, rightly dismissed the application. Hence, I do not find any reason to interfere with the order of the lower Court. - 2015 Telangana msklawreports

After completion of trial,
the case underwent several adjournments for arguments. While 
so, in the midst of the arguments, the petitioners filed I.A.No.296
of 2014 under Order VI Rule 17 read with Section 151 of the
Code of Civil Procedure for amendment of plaint to claim the
relief of declaration of title and also for the relief of correction
of record of rights in favour of the petitioners.
As rightly observed by the lower Court, since the
respondents have been strongly asserting their title over the suit
schedule property, the petitioners should have claimed the relief
of declaration of title in the beginning itself. Even if for any
reason there was a bona fide lapse on the part of the petitioners
to claim such a relief initially, at least after the entries in the
revenue record were altered in favour of the respondents in the
year 2005-06, they should have come out with the application
for amendment.

     It appears Exs.B-6 to B-17 were marked as far back as the
year 2012. At least within a reasonable time of marking those
documents, the petitioners should have filed the application for
amendment. They have slept over various stages for a period of
ten years and leisurely filed the application for amendment after
completion of the trial and more than one year after
commencement of the arguments. These facts would clinchingly
establish that the mandatory requirement of satisfying the
Court, that despite due diligence, they could not have filed the
application for amendment earlier, has not been satisfied by the
petitioners. The lower Court has, therefore, rightly dismissed the
application. Hence, I do not find any reason to interfere with the
order of the lower Court. - 2015 Telangana msklawreports

Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act, 1987-Order VII Rule 11(d) CPC- suit for perpetual injunction restraining the petitioner from parking car in the stilt area of the complex -he is the absolute owner and possessor -the recitals and description of the schedule property in the sale deeds of the parties would reveal that while he has got car parking rights in the stilt area, the petitioner does not have such a right.- objection raised - suit not maintainable as A.P.A (PC&O)Act - under Section 24 of the Act, selling or leasing out or misuse of common areas is prohibited and therefore, the claim of the respondent/plaintiff that he has purchased the parking area through registered document dated 29.12.2010 is not sustainable and that as the car parking area forms part of common area, the petitioner is entitled to use the same by parking the car notwithstanding the sale deed does not contain the fact that the parking area is allotted to him. - filed IA for rejection of suit - Trial court dismissed the IA- whether the common area in the apartment premises could be sold or not being a mixed question of fact and law needs to be adjudicated only after trial. The lower Court has further opined that as the provisions of the Act have not expressly or impliedly barred institution of civil suit in respect of any such common areas or questions with regard to such areas, the petitioner is not entitled to question the order under Order VII Rule 11(d) CPC. - their lordships of Telangan High court confirmed the same.- 2015 Telangan msklawreports

The respondent has filed above-mentioned suit for perpetual
injunction restraining the petitioner from parking car in the stilt
area of the complex known as Laxmi Nivas bearing municipal
No.11-13-116/24, admeasuring 500 sq.yards, situated at Road 
No.6, Ramakrishnapuram, Kothapet, Ranga Reddy District. It is
his pleaded case that he is the absolute owner and possessor of
flat bearing No.202, Laxmi Nivas, including common areas and
balcony along with car parking and undivided share of 49 sq.yards
in the said premises and that the petitioner is the owner of flat
No.201, second floor, admeasuring 1115 sq.feet in the same
complex without right to park his car. The respondent averred that
the recitals and description of the schedule property in the sale
deeds of the parties would reveal that while he has got car parking
rights in the stilt area, the petitioner does not have such a right.

The petitioner has filed written statement, raising various
pleas on merits and also the plea that the suit is not maintainable
as it is against the provisions of the Andhra Pradesh Apartments
(Promotion of Construction and Ownership) Act, 1987 (for short
the Act). After filing the written statement, the petitioner has filed
I.A.No.318 of 2014 under Order VII Rule 11(d) CPC for rejection of
the plaint. The main premise on which this application is filed is
that under Section 24 of the Act, selling or leasing out or misuse of
common areas is prohibited and therefore, the claim of the
respondent/plaintiff that he has purchased the parking area
through registered document dated 29.12.2010 is not sustainable
and that as the car parking area forms part of common area, the
petitioner is entitled to use the same by parking the car
notwithstanding the sale deed does not contain the fact that the
parking area is allotted to him.
Trial court dismissed the I.A.
whether the common area in the apartment premises 
could be sold or not being a mixed question of fact and law needs
to be adjudicated only after trial. The lower Court has further
opined that as the provisions of the Act have not expressly or
impliedly barred institution of civil suit in respect of any such
common areas or questions with regard to such areas, the
petitioner is not entitled to question the order under Order VII Rule
11(d) CPC.

 As rightly observed by the lower Court
that the provisions of the Act and the effect of recitals in the sale
deed of the petitioner need to be adjudicated only after recording of
evidence. Any such conclusion arrived at the stage of consideration
of Order VII Rule 11(d) CPC would amount to premature
adjudication and the same is not desirable in the absence of
evidence on record. In the absence of any provision under the Act
expressly barring the suit, the lower Court has rightly dismissed
the application filed by the petitioner for rejection of the plaint.

      In view of the above-mentioned reasons, I do not find any
merit in the Civil Revision Petition and the same is accordingly
dismissed. - 2015 Telangan msklawreports

Specific Relief Act Sec.22 & 28 and Sec.55 of T.P.Act - whether the executing court can order for delivery of possession in the absence of the same in Decree of Specific performance under Sec.22 (1)(a) of Specific Relief Act ? - Trial court rejected the objection of the Jdr and order for delivery of possession - their Lordships of Telangana High court held that even in the absence of any specific clause in the decree for recovery of possession, the executing court is undoubtedly and unhesitatingly is competent to order delivery of the property covered by the suit agreement of sale. It is further clear that the decree for mere specific performance implies a decree for possession also. The provisions of Section 28 of Specific Relief Act and Section 55(1)(f) of the TP Act obligate the seller to deliver the property. -2015 Telangana msklawreports

 In the instant case, absolutely there is no controversy with regard to
the realities that the learned I Additional District Judge, Karimnagar decreed
the suit on 29.4.2011, directing the petitioner herein to execute registered
sale deed in respect of the land covered by the suit agreement of sale dated
12.11.2007 and that the said decree has attained finality in view of non
filing of any appeal against the said decree.
 The only objection of the
judgment debtor is that as the decree holder did not seek the relief of
possession as stipulated under Section 22(1)(a) of the Specific Relief Act,
1963 and as there is no decree for recovery of possession, the decree
holder/respondent is not entitled for possession in execution. 
 On the
contrary it is the case of the decree holder that in view of the provisions of
Section 28 of the Specific Relief Act, 1963 and Section 55(1)(f) of the
Transfer of Property Act, 1882 the objection of the petitioner/judgment
debtor cannot stand for judicial scrutiny and liable to be rejected.

Section 22 - Power to grant relief for possession, partition, refund of
earnest money, etc 

       (1) Notwithstanding anything to the contrary contained in the
Code of Civil Procedure,1908, any person suing for the specific
performance of a contract for the transfer of immovable property may,
in an appropriate case, ask for--
       (a) possession, or partition and separate possession, of the
property, in addition to such performance; or
       (b) any other relief to which he may be entitled, including the
refund of any earnest money or deposit paid or2[made by] him, in case
his claim for specific performance is refused.
       (2) No relief under clause (a) or clause (b) of sub-section (1)
shall be granted by the court unless it has been specifically claimed:
        Provident that where the plaintiff has not claimed any such
relief in the plaint, the court shall, at any stage of the proceeding, allow
him to amend the plaint on such terms as may be just for including a
claim for such relief.
       (3) The power of the court to grant relief under clause (b) of
sub-section (1) shall be without prejudice to its powers to award
compensation under section 21. 

Section 28 - Rescission in certain circumstances of contracts for the sale
or lease of immovable property, the specific performance of which has
been decreed 

       (1) Where in any suit a decree for specific performance of a
contract for the sale or lease of immovable property has been made
and the purchaser or lessee does not, within the period allowed by the
decree or such further period as the court may allow, pay the purchase
money or other sum which the court has ordered him to pay, the
vendor or lessor may apply in the same suit in which the decree is
made, to have the contract rescinded and on such application the court
may, by order, rescind the contract either so far as regards the party in
default or altogether, as the justice of the case may require.

       (2) Where a contract is rescinded under sub-section (1), the
court--
       (a) shall direct the purchaser or the lessee, if he has obtained
possession of the property under the contract, to restore such
possession to the vendor or lessor; and
       (b) may direct payment to the vendor or lessor of all the rents
and profits which have accrued in respect of the property from the date
on which possession was so obtained by the purchaser or lessee until
restoration of possession to the vendor or lessor, and if the justice of
the case so requires, the refund of any sum paid by the vendee or the
lessee as earnest money or deposit in connection with the contract.
       (3) If the purchase or lessee pays the purchase money or other
sum which he is ordered to pay under the decree within the period
referred to in sub-section (1), the court may, on application made in the
same suit, award the purchaser or lessee such further relief as he may
be entitled to, including in appropriate cases all or any of the following
reliefs, namely:--
       (a) the execution of a proper conveyance or lease by the vendor
or lessor;
       (b) the delivery of possession, or partition and separate
possession, of the property on the execution of such conveyance or
lease.
       (4) No separate suit in respect of any relief which may be
claimed under this section shall lie at the instance of a vendor,
purchaser, lessor or lessee, as the case may be.
       (5) The costs of any proceedings under this section shall be in
the discretion of the court.

9.      Section 55 of the Transfer of Property Act, 1882 reads as infra:
      Rights and liabilities of buyer and seller
In the absence of a contract to the contrary, the buyer and the seller of
immoveable property respectively are subject to the liabilities, and have
the rights, mentioned in the rules next following or such of them as are
applicable to the property sold:
(1) The seller is bound-
(a) to disclose to the buyer any material defect in the property1[or in
the seller's title thereto] of which the seller is, and the buyer is not,
aware, and which the buyer could not with ordinary care discover;

(b) to produce to the buyer on his request for examination all
documents of title relating to the property which are in the seller s
possession or power; 
(c) to answer to the best of his information all relevant questions put to
him by the buyer in respect to the property or the title thereto;
(d) on payment or tender of the amount due in respect of the price, to
execute a proper conveyance of the property when the buyer tenders it
to him for execution at a proper time and place;
(e) between the date of the contract of sale and the delivery of the
property, to take as much care of the property and all documents of
title relating thereto which are in his possession as an owner of ordinary
prudence would take of such property and documents; 
(f) to give, on being so required, the buyer, or such person as he
directs, such possession of the property as its nature admits;
(g) to pay all public charges and rent accrued due in respect of the
property up to the date of the sale, the interest on all encumbrances on
such property due on such date, and, except where the property is sold
subject to encumbrances, to discharge all encumbrances on the 
property then existing.

(2) The seller shall be deemed to contract with the buyer that the
interest which the seller professes to transfer to the buyer subsists and
that he has power to transfer the same:
Provided that, where the sale is made by a person in a fiduciary
character, he shall be deemed to contract with the buyer that the seller
has done no act whereby the property is encumbered or whereby he is 
hindered from transferring it.
The benefit of the contract mentioned in this rule shall be annexed to,
and shall go with, the interest of the transferee as such, and may be
enforced by every person in whom that interest is for the whole or any
part thereof from time to time vested.

(3) Where the whole of the purchase-money has been paid to the
seller, he is also bound to deliver to the buyer all documents of title
relating to the property which are in the seller's possession or power:

Provided that, (a) where the seller retains any part of the property
comprised in such documents, he is entitled to retain them all, and, (b)
where the whole of such property is sold to different buyers, the buyer
of the lot of greatest value is entitled to such documents. But in case
(a) the seller, and in case (b) the buyer, of the lot of greatest value, is
bound, upon every reasonable request by the buyer, or by any of the
other buyers, as the case may be, and at the cost of the person making
the request, to produce the said documents and furnish such true
copies thereof or extracts therefrom as he may require; and in the
meantime, the seller, or the buyer of the lot of greatest value, as the
case may be, shall keep the said documents safe, uncancelled and 
undefaced, unless prevented from so doing by fire or other inevitable
accident.

(4) The seller is entitled-
(a) to the rents and profits of the property till the ownership thereof
passes to the buyer;
(b) where the ownership of the property has passed to the buyer before
payment of the whole of the purchase-money, to a charge upon the
property in the hands of the buyer,1[any transferee without
consideration or any transferee with notice of the non-payment], for
the amount of the purchase-money, or any part thereof remaining
unpaid, and for interest on such amount or part1[from the date on
which possession has been delivered].

(5) The buyer is bound-
(a) to disclose to the seller any fact as to the nature or extent of the
seller's interest in the property of which the buyer is aware, but of
which he has reason to believe that the seller is not aware, and which
materially increases the value of such interest;
(b) to pay or tender, at the time and place of completing the sale, the
purchase-money to the seller or such person as he directs: provided
that, where the property is sold free from encumbrances, the buyer
may retain out of the purchase-money the amount of any 
encumbrances on the property existing at the date of the sale, and shall
pay the amount so retained to the persons entitled thereto;
(c) where the ownership of the property has passed to the buyer, to
bear any loss arising from the destruction, injury or decrease in value of
the property not caused by the seller;
(d) where the ownership of the property has passed to the buyer, as
between himself and the seller, to pay all public charges and rent which
may become payable in respect of the property, the principal moneys
due on any encumbrances subject to which the property is sold, and
the interest thereon afterwards accruing due.

(6) The buyer is entitled-
(a) where the ownership of the property has passed to him, to the
benefit of any improvement in, or increase in value of, the property,
and to the rents and profits thereof;
(b) unless he has improperly declined to accept delivery of the property,
to a charge on the property, as against the seller and all persons
claiming under him,2[ * * *] to the extent of the seller's interest in the
property, for the amount of any purchase-money properly paid by the
buyer in anticipation of the delivery and for interest on such amount;
and, when he properly declines to accept the delivery, also for the
earnest (if any) and for the costs (if any) awarded to him of a suit to
compel specific performance of the contract or to obtain a decree for its
rescission.

An omission to make such disclosures as are mentioned in this section,
paragraph (1), clause (a) and paragraph (5), clause (a), is fraudulent.

 
 From a reading of the principles and parameters laid down in the
above referred judgments cited by the learned counsel for the respondent
wherein the Courts elaborately and thoroughly analysed and considered the
issue in the light of the provisions of Section 28 of the Specific Relief Act,
1963 and Section 55(1)(f) of the Transfer of Property Act, 1882, it can now
be safely concluded that even in the absence of any specific clause in the
decree for recovery of possession, the executing court is undoubtedly and
unhesitatingly is competent to order delivery of the property covered by the
suit agreement of sale.  It is further clear that the decree for mere specific
performance implies a decree for possession also.  The provisions of Section
28 of Specific Relief Act and Section 55(1)(f) of the TP Act obligate the seller
to deliver the property.

 It needs to be remembered that a mature legal system proceeds
always a step forward and endeavours to provide not merely a remedy for
every right infringed but also an adequate remedy.  The endeavour of the
Courts should be in the direction of providing speedy and meaningful justice
to the society and Courts should also strive for effective and expeditious
implementation of the decrees, otherwise there is every possibility of citizens
losing faith and confidence in the system.  In the name of technicalities and
inappropriate procedural shackles the validly rendered decrees should not be
allowed to be frustrated at the instance of the wise and seasoned litigants
and the innocent decree holders should not be allowed to suffer and their
legitimate rights should never be permitted to be invaded.  The contention
of the learned counsel for petitioner that the Executing Court cannot go
beyond the decree also pales into insignificance in view of the law laid down
in the above referred judgments.

  In the teeth of the statutory duties imposed by the provisions of
Section 28 of the Specific Relief Act and Section 55 of the Transfer of
Property Act on the seller and keeping in view the area of operation of
Section 22 of the Specific Relief Act, 1963 and keeping in view the
interpretation given to the phrase "inappropriate cases" as stipulated in
Section 22 of the Specific Relief Act in the above referred judgments and
keeping in view the reality that the property is only in the possession of the
judgment debtor but not in the possession of any third party and having
regard to the ratio laid down in the authoritative pronouncement of the Apex
Court, wherein the Supreme Court elaborately and extensively considered
the impact of the provisions of Section 28 of the Specific Relief Act and
Section 55(1)(f) of the Transfer of Property Act, this Court expresses
absolutely no scintilla of hesitation nor any traces of doubt to hold that the
there is no legal infirmity in the impugned order, warranting interference of
this Court under Section 115 of CPC.  This Court also finds that the order
under revision is well reasoned and well crafted and this Court finds no
reason to meddle with the impugned order.

    For the aforesaid reasons, the CRP is dismissed.2015 Telangana msklawreports

Return of plaint before registering a case - to file the original document - failing which it would be treated as rejection of plain - their Lordships of High court of A.P. held that 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 - 2015 A.P.msklawreports

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, 
where under 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.

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.

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.

 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.- - 2015 A.P.msklawreports

whether a female member of the husband's family could be made a party to the proceedings under the Domestic Violence Act, 2005 ? - yes – Section 2(q) - the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage.-2015 S.C. ( 2011) MSKLAWREPORTS

in relation to the interpretation of the expression "respondent" in Section 2(q) of the Domestic Violence Act, 2005. For the sake of reference, Section 2(q) of the above-said Act is extracted hereinbelow :-

"2(q). "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner."

From the above definition it would be apparent that although Section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage.

It is true that the expression "female" has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression "relative", nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.

 In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005. -2015 S.C. ( 2011) MSKLAWREPORTS

Order 38 Rule 5, only the properties of the defendant can be attached and not the properties in the hands of garnishee has no statutory support nor the support of any precedent.-2015 A.P.(2004) MSKLAWREPORTS

Order 38 Rule 5, only the properties of the defendant can be attached and not the properties in the hands of garnishee has no statutory support nor the support of any precedent.

"Order 38, Rule 7 C.P.C. provides that the attachment under Order 38, Rule 5 shall be made in the manner provided for the attachment of property in execution of a decree. It is trite, the attachment envisaged under Order 38, Rule 5 CPC is an attachment before judgment. The restriction found by the learned Single Judge that under Order 38 Rule 5, only the properties of the defendant can be attached and not the properties in the hands of garnishee has no statutory support nor the support of any precedent.

The attachment of debts due to the defendant from third party could be attached before judgment under Order 38 Rule 5 CPC.-2015 A.P.(2004) MSKLAWREPORTS

Sec.498 A ,506 of I.P.C.- Sec.3&4 of the Dowry Prohibition Act -Criminal Revision Sections 397 and 401 of the CrPC - Non framing of Charges under Sec.3&4 of the Dowry Prohibition Act and No discussion of charges framed under sec.506 I.P.C. in judgement as if it is not framed - liable to be set aside - without permission a Defacto complainant can file Revision in police/Calender Case - Act. 5/90 was introduced with effect from 31-12-2009 and as the criminal revision is filed in the year - being revisional court , it can not disturbed the acquittal order and as such remanded the case for fresh trial after framing charges required -2015 A.P.(2014) MSKLAWREPORTS

charges were framed for the offences
punishable under Sections 498-A and 506 of the IPC and the accused were
tried for the said offences with which they were charged.  And, no
charges were framed for the offences punishable under Sections 3 and 4
of the Dowry Prohibition Act.
The trial court had framed two charges namely one under Section 498-A
and another under Section 506 of the IPC and examined the accused with
reference to the said charges on 19.10.2006.
But in the impugned
judgment, there was no reference to the charge under Section 506 of the
IPC against the accused; and, strangely the court below had dealt with a
charge under Section 420 of the IPC though no charge was framed against
the accused for the said offence.

Whether the judgment impugned is liable to set aside in
the facts and circumstances of the case and in the light of
the submissions made on behalf of the petitioner?

Therefore, this court is of the well considered view that the judgment of
the trial court is unsustainable and is liable to be set aside.
Indisputably, this case arises out of a police report.  By the
judgment impugned, the trial court recorded a finding of acquittal
against the accused.
 The State did not prefer any appeal.  The present
revision case under Sections 397 and 401 of the CrPC is preferred by the
informant/victim who is the wife of A1.
The informant/petitioner did
not seek leave of this court for preferring an appeal and had not
preferred any appeal.
 Under Section 372 of the CrPC, no appeal shall lie
from any judgment or order of a Criminal Court except as provided for by
the Code or by any other law for the time being in force.
 By the time
this criminal revision was instituted in the year 2008, the proviso which
was introduced by Act 5/09 with effect from 31.12.2009 was not on the
statute book.
Therefore, since the case arises from a police report and as
the calendar case was taken on file pursuant to the police report, a
revision is maintainable.
 However, Section 401(3) of the CrPC says
nothing in this section shall be deemed to authorise a High Court to
convert a finding of acquittal into one of conviction while exercising the
powers of revision.
Therefore, in the light of the legal position and the
facts peculiar to the case, the only course open to this court is to remit
the matter to the trial court for disposal of the matter afresh in
accordance with the procedure established by law.
In view of the said
decision of this court to remit the matter to the trial court for fresh
consideration of the case on merits in all respects, this court did not
examine the credibility and reliability and adequacy or otherwise of the
evidence in regard to the charge under Section 498-A of the IPC.
Accordingly, the criminal revision case is allowed and the
judgment of the court below is hereby set aside and the matter is
remitted to the trial court for fresh disposal of the case on merits in
accordance with the procedure established by law having regard to the
charges specifically framed against the accused.
It is made clear that
the trial Court is at liberty to frame any other additional charges, if
necessary, against all or any one of the accused by following the
procedure established by law.
 However, it is also made clear that the
prosecution as well as the accused are at liberty to recall any witness
already examined either for examination in chief or cross examination as
the case may be and also to adduce further evidence, if any, which the
law permits.
The trial court shall consider the entire evidence on record
in proper perspective while disposing the case afresh on merits.- 2015 A.P.(2014) MSKLAWREPORTS

Evidence Act- admissibility of previous Depositions made in earlier proceedings in respect of disputes issue - Trial court refused to receive and to mark the depositions under sec.33 of INDIAN EVIDENCE ACT - A.P.High court held that it is a settled law that sec.33 not apply to depositions - but held that where if a party has made certain admissions in the previous proceeding instituted between the same parties, such evidence can be marked as an exhibit in subsequent suit. -2015 A.P.(2014) MSKLAWREPORTS

The respondent filed the above-mentioned suit for eviction of
the petitioner from the suit schedule property.  During the trial, the
petitioner sought to mark the deposition of the respondent given in
O.S.No.751 of 2005.  The petitioner was not allowed the mark the
said deposition on the ground that the respondent has not satisfied
the requirements of Section 33 of the Indian Evidence Act, 1872 (for
short the Act).  Feeling aggrieved by the said order, the petitioner
filed this revision petition.
The petitioner wanted to mark the said
deposition in the present suit on the ground that the respondent has
made certain admissions in the said suit relating to the tenancy of
the building from which the petitioner is sought to be evicted in the
present suit.

 Dealing with Section 33 of the Act, the Supreme 
 held that in a given case
Section 33 of the Act may not in terms apply where if a party has
made certain admissions in the previous proceeding instituted
between the same parties, such evidence can be marked as an  
exhibit in subsequent suit.  Though the nature of the suits in the
instant case varies, the purpose for which the petitioner sought
marking of evidence of the respondent is evidently to plead that in
the face of the purported admission made by him that the firm was
the tenant and not the petitioner, the suit filed without impleading
the firm is not maintainable.  In the light of the purpose for which the
petitioner seeks to mark the evidence of the respondent, it cannot
be said that the said evidence has no relevance to the present suit.
In my opinion, the lower Court has misdirected itself in not permitting
the petitioner to mark the said deposition of the respondent in
O.S.No.751 of 2005 in evidence. - 2015 A.P.(2014) MSKLAWREPORTS

Sec.3 & Sec.9 of ROR Act - third parties names were shown against their properties - made an application before the collector - collector directed the RDO to decided the matter treating it as an appeal - R.D.O gave directions to the Tahasildar - No remedy - A.P.High court held that since the entires not made for the first time with in one year from the date of notification as per sec.3 of R.O.R. Act - Tahasildar has no jurisdiction to made any corrections in the entiries with out permission from Collector - Hence the Collector is the appropriate authority to decide the same as per sec.9 and as such directions given to dispose the application within 3 months- 2015 A.P. msk law reports

On noticing that some third parties names were shown 
against their properties in the revenue records, the petitioners
approached the District Collector bringing the said fact to his
notice and sought necessary corrections in the revenue records.

It is not in dispute that as on the date of application by the
petitioners to the District Collector, third parties names were
appearing in the revenue records against the properties to which
the petitioners are claiming right.  In other words, the petitioners
are seeking substitution of their names in the place of the names
already recorded in the revenue records.  
Entries in the revenue
records reflecting a partys name relate to the proceedings of the
Tahsildar under Section 3 of the Act. 
 It is not the case of the
petitioners that at the time when the names of the said third
parties were initially recorded (the date & details of which are not
mentioned by the petitioners in the writ petition), the claim of the
petitioners was also there before the Mandal Revenue Officer, who
was exercising powers under Section 3 of the Act.

A perusal of Sections 3 to 5 and 9 of the Act leave no
manner of doubt that the Tahsildar is not vested  with any
powers to make  corrections either  suo motu or on an
application except at the time of  making entries for the
first time in terms of the notification issued under Sections
3(1), 3(2) of the Act.  
Any corrections in relation to the
entries could be made in the given circumstances
satisfying  Section 3(3) of the Act  within one year. 
If the
case requiring corrections of the revenue records beyond
the time limit of one year,  necessary orders can be passed
only by the District Collector in exercise  of the revisional
powers and the Tahsildar is not vested with any such
power.  
In that view of the matter, liberty is given to the
petitioner to approach the 2nd respondent-District
Collector, and submit an application ventilating his
grievance and seek redress.  
On submission of such 
application, the 2nd respondent-District Collector shall
dispose of the same within a period of six months.

In the circumstances, the District Collector is directed to
call for the record and exercise powers conferred upon him under
Section 9 of the Act to redress the grievance of the petitioners
within a period of 3 months from today. 2015 A.P. msk law reports

Whether the application under sec.12, should be filed in Form-II as prescribed under Rule 6(1) of the Rules and verified in the prescribed manner with out any modification ? - No whether calling and according consideration to Domestic Incident Report of a Protection Officer or the Service Provider is sine qua non for passing an order, interim or final, on an application under section 12(1) of the Act? - No -2015 J & K ( 2014) msklawreports

whether calling and according consideration to Domestic Incident Report of a Protection Officer or the Service Provider is sine qua non for passing an order, interim or final, on an application under section 12(1) of the Act?

A comparative reading of sections 4, 9 and 10 of the Act and Rules 4 and 8 of the Rules on one hand and section 12 of the Act on the other would make it clear that giving of information about domestic violence to the Protection Officer under section 4 or to Service Provider under section10 and making an application seeking relief under section 12(1) or two different and independent aspects of the Act. Making an application under section 12(1) to the Magistrate is no way linked with or dependent upon providing information to the Protection Officer or the Service Provider. To say the other way, giving information to Protection Officer or Service Provider and their report to the Magistrate in no way can be taken as a sine qua non for making an application under section 12(1) to the Magistrate. It is open to an aggrieved person to straightway make an application to the Magistrate under section 12(1) seeking one or more reliefs under the Act. The only interpretation that can be given to the proviso to section 12(1) of the Act is that the Magistrate before passing any order on the application of the aggrieved person will have to accord consideration to a Domestic Incident Report of a Protection Officer or a report of a Service Provider, if such a report has been received by the Magistrate. Key to such interpretation seem to have been made available in the proviso itself by use of word any . Proviso does not mandate calling for a report from a Protection Officer or Service Provider but refers to any report received from a Protection Officer or Service Provider, which, however, would be available only in a case where information to the Protection Officer or a Service Provider about an act of domestic violence had been given by the aggrieved person himself or by any person .

Whether the application under sec.12, should be filed in Form-II as prescribed under Rule 6(1) of the Rules and verified in the prescribed manner with out any modification ?

 Rule 6(1) reads as under: 6. Applications to the Magistrate.- (1) Every application of the aggrieved person under section 12 of the Act shall be in Form II or as nearly as possible thereto.

On its plain reading, it would be clear Rule 6(1) does not make it mandatory for the applicant to prepare an application under section 12(1) of the Act in Form II only. 

The Rule provides also that it may be as nearly as possible to Form-II. 

Form-II on its reading would show that it mainly provides for giving the name of the person (aggrieved person/Protection Officer/any other person on behalf of aggrieved person) who makes the application and details about the order(s) sought from the Magistrate, that is, Protection Order under section 18/Residence Order under section 19/ Monetary Reliefs under section 20/ Custody Order under section 21/Compensation Order under section.

 It may be stated in this regard that the Act is a welfare legislation to provide for effective protection of rights of women guaranteed under the Constitution, who were victims of domestic violence. A relief sought under the Act will not be defeated merely on technical defects like application having not been filed in prescribed form unless the application does not convey or make out what is required and sufficient for grant of the relief. - 2015 J & K ( 2014) msklawreports

DVC CASE - Practice & Procedure - Magistrate shall issue a notice of the date of hearing fixed under Sec.12-the Magistrate need not, nay shall not issue warrant for securing presence of respondent - the Court need not insist for personal attendance of the parties for each adjournment like in criminal cases.-if the respondents failed to turn up after receiving notice and file their counter affidavit if any,pass an exparte order by virtue of the power conferred on him under Sec.23 of the D.V.Act.-only under exceptional circumstances, if the Magistrate feels required, he may issue warrants for securing the presence of the concerned party. -2015 A.P. MSKLAWREPORTS( Telegana)

A close perusal of Section 28 would show that though as per this
Section the proceedings under Sec.12, 18 to 23 and offences under Sec. 31 are
governed by the Code of Criminal Procedure, 1973, that is not an inscrutable
rule inasmuch as Sec.28(1) is having a saving clause and also subject to sub-
section(2).  
When we analyse the limitations of Section 28(1) with reference
to the civil nature of the remedies provided under Sec.18 to 22 and saving
provisions under Sec.13 and 23, we can understand that for conducting
enquiry, the Court need not insist for personal attendance of the parties for
each adjournment like in criminal cases.  
It is because, Sec.13 lays down that
the Magistrate shall issue a notice of the date of hearing fixed under Sec.12 to
the Protection Officer for serving on the respondent. So for securing the
appearance of respondent, at the first instance, the Magistrate need not, nay
shall not issue warrant. 
Even if the respondents failed to turn up after
receiving notice and file their counter affidavit if any, the Magistrate need
not take coercive steps for securing their presence and on the other hand he can
treat them as Non-contesting respondents and pass an exparte order by
virtue of the power conferred on him under Sec.23 of the D.V.Act. 
So during
the enquiry under Sec.12 and till an order is passed under Sec.18 to 23, the
Magistrate need not insist the presence of parties for each adjournment and
take coercive steps due to their absence. 
It is only under exceptional
circumstances, if the Magistrate feels required, he may issue warrants for
securing the presence of the concerned party.  
Such a judicial flexibility to
lay down own procedure is conferred on the Magistrate under Sec.28(2) of the
D.V. Act.  
By following this procedure, learned Magistrate can obviate the
presence of the respondents, some of whom in most of the cases are 
unnecessarily roped in, throughout the enquiry.


i)      Since the remedies under D.V Act are civil remedies, the Magistrate in
view of his powers under Section 28(2) of D.V Act shall issue notice to the
parties for their first appearance and shall not insist for the attendance of
the parties for every hearing and in case of non-appearance of the parties despite
receiving notices, can conduct enquiry and pass exparte order with the
material available.  It is only in the exceptional cases where the Magistrate
feels that the circumstance require that he can insist the presence of the
parties even by adopting coercive measures. 
ii)     In view of the remedies which are in civil nature and enquiry is not a
trial of criminal case, the quash petitions under Sec.482 Cr.P.C on the plea
that the petitioners are unnecessarily arrayed as parties are not maintainable.
It is only in exceptional cases like without there existing any domestic
relationship as laid under Section 2(f) of the D.V. Act between the parties, the
petitioner filed D.V. case against them or a competent Court has already
acquitted them of the allegations which are identical to the ones leveled in the
Domestic Violence Case, the respondents can seek for quashment of the  
proceedings since continuation of the proceedings in such instances certainly
amounts to abuse of process of Court. - 2015 A.P. MSKLAWREPORTS ( Telegana)

Sec.498 A, Sec.4 of Dowry Act and Domestic Violence Act - the A.P.High court gave certain guide lines - investigation must be verified by an officer not below the rank of DSP - for deleting the name of falsely named accused in charge sheet permission of S.P. necessary - on immediate complaint of either party wife or husband - both parties should be asked to undergo counselling before the expert counsellors and their report may be made as part of record and SP in consultation with District legal services authorities may prepare panel of counsellors - except in serious offences - no arrest should be effected for mere dowry harassment with out permission of S.P. - No harassment by police and no force for compromise - Magistrate too has to examine the grounds of remand other wise , accused should be released on bail on personal bonds - 2015 A.P.(2014) MSK LAW REPORTS

   In the light of the above discussion, the following
guidelines have been issued.

a)      A fair and dispassionate investigation should be
conducted.  After completing investigation, the
same should be verified by an officer not below
the rank of Deputy Superintendent of Police.

b)      During the course of investigation, if the
investigating officer is satisfied that there is false
implication of any person in the complaint then
he may delete the names of such persons from 
the charge sheet after obtaining necessary
permission from the Superintendent of Police or
any other officer equivalent to that rank.

c)      As soon as a complaint is received either from
the wife alleging dowry harassment or from the
husband that there is every likelihood of him
being implicated in a case of dowry harassment,
then, both the parties should be asked to
undergo counselling with any experienced
counsellor or counsellors.  The report of such
counsellors should be made as a part of the
report to be submitted by the investigating
officer to the Court.

d)      The Superintendent of Police, in consultation
with the Chairman, District Legal Services
Authority, may prepare a panel of counsellors
and such panel of counsellors along with their
address and phone numbers should be made   
available at all the police stations.

e)      Normally, no accused should be arrested, where 
the allegation is simple dowry harassment.  If
the arrest is necessary during the course of
investigation, the investigating officer should
obtain permission of the Superintendent of
Police or any other officer of the equal rank in
metropolitan cities.  If arrest is not necessary,
the police may complete the investigation and
lay charge sheet before the Court without
arresting the accused and seek necessary orders
from the Court.  However, in the case of dowry
death, suspicious death, suicide or where the
allegations are serious in nature such as
inflicting of bodily injury etc., the police officer
may arrest the accused.  However, the
intimation of such arrest should be immediately
sent to the concerned Superintendent of Police
who may give necessary guidance to the 
arresting officer.

f)      No accused or witness should be unnecessarily 
called to the police station and as soon as the
purpose of summoning them to the police station
is over they should be sent back.  There should
not be any unnecessary harassment to any
person i.e. either to the relatives of the de facto
complainant or to the relatives of the husband.

g)      The higher police officers should see that the
parties do not make any allegations that they are
forced to come to any settlement in police
stations against their wish.  However, this does
not mean that the police officers should not
make any effort for amicable settlement.

h)      The advocates have to play their role in trying to
unite the families.  They must act as social
reformers while dealing with these kind of cases,
particularly, where the couple have children.
Even when an accused is produced before the
Magistrate, they should examine the matter
judiciously and consider whether there are valid
grounds for remanding the accused to the
judicial custody.  No accused should be
remanded to judicial custody mechanically in
routine manner.  If the Magistrate feels that the
accused cannot be released after taking bonds,
necessary orders may be passed accordingly. 

   The Director General of Police, Andhra Pradesh, is
requested to issue necessary instructions to all the
concerned in this regard.

      In the instant case, having regard to the allegations
made against the petitioners and in the facts and
circumstances of the case, I am inclined to grant
anticipatory bail to the petitioners.

      In the event of arrest of the petitioners, they shall
be enlarged on bail on their executing a bond for a sum
of Rs.5,000/- (Rupees Five Thousand Only) each with
one surety for a like sum each to the satisfaction of the
arresting officer, Falaknuma Police Station, Hyderabad.

      Accordingly, the Criminal Petition is allowed. -2015 A.P.(2014) MSKLAWREPORTS