no fire arms came to be seized from the possession of the petitioner and therefore, he cannot be charged for the offence under Section 25(1)(a) & 27 of Indian Arms Act . Section 25(1)(a) of the Arms Act, 1959 reads as hereunder:- “25. Punishment for certain offences---[(1) Whoever— (a) manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or (b) shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6 ; or xxxxxxxx xxxxxx xxxxxx” Section 27 of the Arms Act reads as hereunder:- 27. Punishment for using arms, etc. (1) Whoever uses any arms or ammunition in contravention of Section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. (2) Whoever uses any prohibited arms or prohibited ammunition in contravention of Section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine. (3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of Section 7 and such use or act results in the death of any other person, shall be punishable with death”. = It is not the case of the prosecution that the petitioner is the person who supplied arms to A-1 and A-2 nor it is the case of the prosecution that the petitioner is found in possession of any fire arm. In that view of the matter, I find that there is no material placed on record by the prosecution to charge the petitioner for the offences under Sections 25(1)(a) and 27 of Indian Arms Act.- Accordingly, this Criminal Revision Case is disposed of discharging the petitioner of the accusations leveled against him under Sections 25(1)(a) and 27 of the Arms Act, 1959.

THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

Criminal Revision Case No.583 of 2013

ORDER:

        This Criminal Revision Case is directed against the order dated 13-03-2013 passed in Crl.M.P.No.1037 of 2013 in C.C.No.797 of 2009 on the file of XI Additional Chief Metropolitan Magistrate, Secunderabad, whereby and whereunder, the learned Magistrate dismissed the application filed by A-3-Bhunampalli Madan Mohan Reddy under Section 239 Cr.P.C.

2.     Facts, in brief, giving raise to filing of this petition by B.MadanMohan Reddy/A-3 in C.C.No.797 of 2009 on the file of XI Additional Chief Metropolitan Magistrate, Secunderabad, are:-

        LW-1-B.Dhanunjaya, Inspector of Police,  Task Force, Central Zone, Hyderabad city received credible information on 20-5-2002 at 1800 hours regarding movement of four persons armed with fire arms, under suspicious circumstances near Swathi Hotel, Paradise Circle, Secunderabad.  He along with his staff, proceeded to Paradise Circle, Secunderabad and apprehended  A-1-Ankireddy  Chandra Sekhar Reddy, A-2-Lakkireddy  Vijaya Bhaskar Reddy @ Bhaskar Reddy @ Bhaskar, A-3-Bhumpally Madan Moahn Reddy @ Madan @  Madan Mohan, A-4-Malishetti Bhanu Kiran @ Bhanu. A-1 and A-2  were found in possession of one revolver with six rounds each. The revolvers  found in possession of A-1 and A-2 and mobile phones came to be seized under the cover of a panchanama.  Pursuant to the confession of A-1, A-5 to A-8 came to be arrested on the intervening night of 20/21-5-2002.  A-1 led the police to the place of A-9 and thereupon, A-9 came to be arrested  at 04.20 hours.  The accused  led the police to the house of A-10 at Sayeedabad and the police took him into custody at 06.10 hours.  The further  investigation  revealed that A-1 to A-3 are close associates  of life convict Suryanarayana Reddy @ Suri in Jubilee Hills Car Bomb Blast Case and they are members of gang  of hired killers in twin cities. A-2 is a member of “Red Star Dalam” involved in many murder cases and two N.B.Ws are pending against him at Anantapur and Tadipatri.  A-1 in association with A-2, A-3 and A-4 planned in a big way  to execute  hired kills for material gain in twin cities.  As per their plan, A-1 procured two revolvers  and 12 live catridges from A-4 through A-7.  He also procured   two more country made revolvers  from A-6 and supplied the same  to A-15, who is underground through A-14 about a fortnight back.  A-1 took an advance of Rs.65,000/- from A-10-K.Narasimha Reddy, to eliminate his staunch rival Shabbaz Khan of Khairatabad.  The timely arrest of the accused persons prevented  a major mishap in twin cities.

3.     LW-1-B.Dhanunjaya, Inspector of Police,  Task Force, Central Zone, Hyderabad city presented a complaint before the S.I of Police, Ramgopalpet P.S.  LW-8-D.Upendra Reddy, S.I of Police, Ramgopalpet P.S received  a complaint and registered  a case in Crime No.86 of 2002 for the offences under Sections 25(1)(a) & 27 of Indian Arms Act and Sections 109, 120-B IPC and Section 7(1)(a) of Criminal Law Amendment Act read with 34 IPC.  After due investigation,  Lw-11-V.David, Sub Inspector of Police, laid charge sheet in the court of  XI Additional Chief Metropolitan Magistrate, Secunderabad.  The learned Magistrate took the charge sheet on file as C.C.No.797 of 2009.

4.     A-3-B.Madan Mohan Reddy filed Crl.M.P.No.1037 of 2013 under Section 239 Cr.P.C seeking discharge.   The learned Chief Metropolitan Magistrate, on considering the material brought on record  and on hearing the counsel appearing for the parties, came to the conclusion  that A-3-B.Madan Mohan Reddy failed to make out any valid grounds for discharge of the offences with which he is accused of  and thereby, proceeded to dismiss the petition, by order dated 13-3-2013. Hence this Criminal Revision Case by A-3-B.Madan Mohan Reddy.

5.     Heard learned counsel appearing for the petitioner and learned Additional Public Prosecutor appearing for the respondent-State.

6.     It is contended by the learned counsel appearing for the petitioner  that no fire arms came to be seized  from the possession of the petitioner  and therefore, he cannot be  charged for the offence under Section 25(1)(a) & 27 of Indian Arms Act .  Learned counsel took me to the panchanama under which two revolvers came to be seized.

7.     As seen from the panchanama dated 21-5-2002; two country made revolvers, one each came to be seized from the possession of A-1 and A-2. No firearms came to be seized from the possession of petitioner, who has been arrayed as A-3.  Section 25(1)(a) of the Arms Act, 1959 reads as hereunder:-

“25. Punishment for certain offences---[(1) Whoever—

(a)  manufactures, sells, transfers, converts, repairs, tests or proves, or exposes  or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms  or ammunition in contravention of section 5; or

(b)  shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6 ; or

xxxxxxxx                 xxxxxx                  xxxxxx”

Section 27 of the Arms Act reads as hereunder:-

27. Punishment for using arms, etc. (1) Whoever uses any arms or ammunition in contravention of Section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of Section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to  imprisonment  for life and shall also be liable to fine.

(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of Section 7 and such use or act results in the death of any other person, shall be punishable with death”.

           

8.     It is not the case of the prosecution that the petitioner is the person who supplied arms to A-1 and A-2 nor it is the case of the prosecution that the petitioner is found in possession of any fire arm.  In that view of the matter, I find that there is no material placed on record by the prosecution to charge the petitioner for the offences under Sections 25(1)(a) and 27 of Indian Arms Act.

9.     Accordingly, this Criminal Revision Case is disposed of discharging the petitioner of the accusations leveled against him under Sections 25(1)(a) and 27 of the Arms Act, 1959.

_____________________

B.SESHASAYANA REDDY, J

Dt.03-04-2013

RAR

       

s

appointment of an Advocate Commissioner = seeking appointment of an Advocate Commissioner for taking measurements of the shop room and also for noting down the physical features of the shop room of the plaintiff/petitioner as well as the shops of the defendants/respondents.= In my opinion, the trial Court has set out valid and justifiable reasons for dismissing the interlocutory application moved by the plaintiff/petitioner belatedly and hence, the order under revision does not call for any interference at my hands. The Court below has rightly concluded the issue that the case set up by the plaintiff/petitioner that the defendants have encroached upon, has got to be established independently. It is obvious that the petitioner/plaintiff is seeking to rope in by way of improvement, a new plea, which is not forming part of the original pleading, for the said purpose, the Commission cannot be taken out.

CRP 1277 / 2013

CRPSR 7178 / 2013

PETITIONER RESPONDENT JUTURI SREENIVASULU   VS IMTIAZ AND 2 OTHERS PET.ADV. : NAGI REDDY RESP.ADV. :  SUBJECT: ARTICLE 227 DISTRICT:  KURNOOL

THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO

CIVIL REVISION PETITION NO.1277 OF 2013

ORDER:

          This revision is preferred by the plaintiff in the suit, aggrieved by the orders passed on 31.12.2012 by the Principal Junior Civil Judge, Kurnool, dismissing I.A.No.2053 of 2012 moved by him seeking appointment of an Advocate Commissioner for taking measurements of the shop room and also for noting down the physical features of the shop room of the plaintiff/petitioner as well as the shops of the defendants/respondents.

          It should be noted that the suit is instituted in the year 2006. It was dismissed for default once on 27.02.2009.  Subsequently it was restored on 29.10.2012.  

The plaintiff has filed an affidavit in lieu of chief examination in the Court and the matter is posted for marking of documents and for cross-examination of PW.1.  At that stage, I.A.No.2053 of 2012 was filed by him seeking appointment of an Advocate Commissioner for inspecting the shops of both parties for noting down the physical features of the encroachments made by the defendants as shown in the plaint plan.         

 This application was contested by the respondents. 

It is asserted by the defendants in the suit that, both the parties are enjoying the respective properties in accordance with the recitals contained in the respective sale deeds, since the time of the purchase of the shop room, and if the plaintiff has got any doubt, he should have got the measurements of his shop room verified and recorded prior to purchasing the same, but instead of doing so, he cannot turn around and file this application at a belated stage. 

The Court below has rightly concluded the issue that the case set up by the plaintiff/petitioner that the defendants have encroached upon, has got to be established independently. 

It is obvious that the petitioner/plaintiff is seeking to rope in by way of improvement, a new plea, which is not forming part of the original pleading, for the said purpose, the Commission cannot be taken out.

          In my opinion, the trial Court has set out valid and justifiable reasons for dismissing the interlocutory application moved by the plaintiff/petitioner belatedly and hence, the order under revision does not call for any interference at my hands.

          This civil revision petition is accordingly dismissed. Miscellaneous applications if any, shall stand dismissed. No costs.

                    ________________________________

NOOTY RAMAMOHANA RAO, J

March 28, 2013

sp

Order - XXI Rules – 54 (1A), 66 and 64 of the Code of Civil Procedure, 1908 for execution of the decree. sale batta was not paid.= The executing Court ought to have given time to the petitioner to pay batta. The fruits of the decree, which is obtained after so much of ordeal, cannot be denied to the petitioner on hyper-technicalities at the time when the Courts are sensitizing the people about their rights and making efforts to take justice to the doorsteps of the people. The impatience executed by the trial Court cannot be countenanced.

HON'BLE SRI JUSTICE L. NARASIMHA REDDY

 

CIVIL REVISION PETITION Nos.1091 AND 1104  OF 2013

COMMON ORDER:

          Petitioner filed O.S. No.189 of 2010 in the Court of Principal Senior Civil Judge, Narasaraopet, for recovery of amount.  The suit was decreed and the decree became final.  Thereupon, petitioner filed E.P. No.115 of 2011 under Order - XXI Rules – 54 (1A), 66 and 64 of the Code of Civil Procedure, 1908 for execution of the decree.  It was noticed that sale batta was not paid.  Petitioner filed E.A. No.26 of 2013 with a prayer to condone the delay of
35 days in filing batta.  The executing Court passed order dated 31-01-2013 dismissing the said E.A.  On the same day, E.P. was also dismissed on the ground that sale batta was not paid.

          2.  Heard Sri P.V.S.K. Chakravarthy, learned counsel for the petitioner.

3.  Though the respondent was served with notice, he has not entered his appearance.

4.  The executing Court ought to have given time to the petitioner to pay batta.  The fruits of the decree, which is obtained after so much of ordeal, cannot be denied to the petitioner on hyper-technicalities at the time when the Courts are sensitizing the people about their rights and making efforts to take justice to the doorsteps of the people.  The impatience executed by the trial Court cannot be countenanced.   

       

          5.  Therefore, these Civil Revision Petitions are allowed and the orders of the trial Court in E.A. No.26 of 2013 and E.P. No.115 of 2011 dated 31-01-2013 are set aside and the E.P. is restored to its file.  Two weeks time is granted to the petitioner to comply with the deficiencies, if any, in the context of deposit of batta. 
There shall be no order as to costs.

         

6.  Consequently, the Miscellaneous petitions filed in these revisions shall stand disposed of. 

    

_____________________

                                                          L. NARASIMHA REDDY, J

April 10, 2013.

VVR/PV

specific performance suit - Vs- the Securitisation and Reconstruction of Financial Assets and Enforcement Act = The appellant filed O.S.No.371 of 2011 against the 1st respondent in the Court of I Additional District Judge, Visakhapatnam for the relief of specific performance of an agreement of sale, dated 23.08.2008 in respect of the suit schedule property. The property was mortgaged by the 1st respondent with the 2nd respondent. During the pendecny of the suit, the 2ndrespondent initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement Act (for short ‘the Act’) against the 1st respondent. In view of this development, the appellant filed I.A.No.1045 of 2011 under Order 39 Rules 1 and 2 C.P.C. with a prayer to restrain the 2nd respondent from proceeding against the property, including by way of sale. = It is a matter of record that the property is under mortgage to the 2nd respondent. The mere pendency of the suit cannot disable the 2nd respondent from enforcing the mortgage. At the same time, the 1st respondent cannot be permitted to defeat the rights of the appellant by permitting the property to be sold in favour of third parties. The appellant expressed his bona fides by stating that he is prepared to liquidate the loan, for which the property is offered as security. He has also made a deposit of Rs.20,00,000/- in compliance with the interim order passed by this Court.= Hence, the appeal is allowed and the order under appeal is set aside. The I.A. is partly allowed directing that it shall be the obligation of the 1st respondent to settle the dispute pertaining to the mortgage of the property with the 2nd respondent, in such a way, that the property is not put to sale. In case, it becomes inevitable to sell the property, it shall be open to the appellant to negotiate with the 2nd respondent within three months and clear the debt to protect the property. Such arrangement shall be without prejudice to the rights of the parties. The trial Court shall endeavour to dispose of the suit as early as possible, preferably within six months from the date of receipt of a copy of this order.

THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

AND

THE HON’BLE SRI JUSTICE K.G.SHANKAR

C.M.A.No.363 of 2013

JUDGMENT: (Per LNR, J)

          The appellant filed O.S.No.371 of 2011 against the 1^st respondent in the Court of I Additional District Judge, Visakhapatnam for the relief of specific performance of an agreement of sale, dated 23.08.2008 in respect of the suit schedule property. The property was mortgaged by the 1^st respondent with the 2^nd respondent.  During the pendecny of the suit, the 2^ndrespondent initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement Act (for short ‘the Act’) against the 1^st respondent. 

In view of this development, the appellant filed I.A.No.1045 of 2011 under Order 39 Rules 1 and 2 C.P.C. with a prayer to restrain the 2^nd respondent from proceeding against the property, including by way of sale.  It was pleaded that if there exists any liability towards the 2^nd respondent, the consideration for the property can be adjusted towards it and that in the process of enforcing the mortgage, his rights cannot be defeated.  The I.A. was contested by respondents 1 and 2. The trial Court dismissed the I.A., through its order, dated 12.10.2011.  Hence, this appeal under Rule 1 of Order 43 C.P.C.

          Heard learned counsel for the appellant and learned counsel for the respondents.

          The appellant bases his claim upon an agreement of sale.  The 1^st respondent however has seriously disputed the very existence of such an agreement.  The question as to whether the agreement of sale, pleaded by the appellant is genuine; needs to be considered at the trial of the suit.

          It is a matter of record that the property is under mortgage to the 2^nd respondent.  The mere pendency of the suit cannot disable the 2^nd respondent from enforcing the mortgage.  At the same time, the 1^st respondent cannot be permitted to defeat the rights of the appellant by permitting the property to be sold in favour of third parties. The appellant expressed his bona fides by stating that he is prepared to liquidate the loan, for which the property is offered as security.  He has also made a deposit of Rs.20,00,000/- in compliance with the interim order passed by this Court.

          We ascertained from the 1^st respondent as to whether he is prepared to pay the mortgage debt and ensure that the property is not sold in favour of third parties.  He stated that he would liquidate the loan by himself without taking any help from the appellant.

          Hence, the appeal is allowed and the order under appeal is set aside.  

The I.A. is partly allowed directing that it shall be the obligation of the 1^st respondent to settle the dispute pertaining to the mortgage of the property with the 2^nd respondent, in such a way, that the property is not put to sale.  

In case, it becomes inevitable to sell the property, it shall be open to the appellant to negotiate with the 2^nd respondent within three months and clear the debt to protect the property.  

Such arrangement shall be without prejudice to the rights of the parties.  The trial Court shall endeavour to dispose of the suit as early as possible, preferably within six months from the date of receipt of a copy of this order. 

          The miscellaneous petition filed in this appeal shall also stand disposed of.  There shall be no order as to costs.

______________________

L.NARASIMHA REDDY, J

_________________
K.G.SHANKAR, J

Date: 12.04.2013

JSU

THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

AND

THE HON’BLE SRI JUSTICE K.G.SHANKAR

 

 

 

 

 

 

 

 

 

 

 

 

C.M.A.No.363 of 2013

Date: 12.04.2013

JSU

Dismissal from service - the same material has been placed both before the departmental authority as well as the criminal Court, inasmuch as the charge laid against the petitioner being substantially the same. When once a Sessions Court comes to the conclusion that the petitioner is not guilty, a contrary finding arrived at by the departmental agency, at any rate, deserves to be reconsidered. ?= only in the event that a criminal Court acquits a person honourably, would there arise any occasion calling for re-consideration of the entire matter, but not otherwise.

THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO

WRIT PETITION No. 8016 OF 2013

O R D E R:

                This Writ Petition is preferred by a former Attender of an Electricity Distribution Company at Vikarabad seeking a writ of mandamus for getting the order of dismissal passed on 18.10.2006 by the Superintending Engineer reviewed, on the strength and basis of the judgment rendered by the VI Additional Sessions Judge (FTC) at Vikarabad in Criminal Appeal No. 58 of 2009.

                Heard Sri D. Linga Rao, learned counsel for the petitioner on 19.03.2013 and also today in extenso and                     Ms. Sridevi, learned counsel deputizing for Sri P. Lakshma Reddy, learned Standing Counsel for the respondents.

                The writ petitioner was appointed by the respondents, on compassionate grounds, as an Attender as his father died leaving the family in harness.  Very tragically, the brothers of the writ petitioner have complained that the writ petitioner has produced a bogus educational certificate vouching for the fact that he has passed Vth standard.  The Divisional Engineer got the matter investigated.  The Z.P. High School at Chityal, wherefrom the certificate has emanated, has pointed out that the certificate does not relate to the petitioner and, in fact, the admission number mentioned in the said certificate also does not correlate to that of the writ petitioner, whereas the admission number mentioned in the certificate relates to one Sri Anji Reddy, S/o Bheema Reddy and that there is no entry in the school records with regard to the admission as well as leaving of the school after completion of the Vth  standard by the writ petitioner.  In those set of circumstances, while a police complaint was also lodged against the petitioner, the respondents have simultaneously proceeded against him as a measure of discipline. An enquiry officer was appointed to conduct a detailed enquiry on 10.02.2004 and after conducting a detailed enquiry, he submitted a report on 02.02.2005  holding the petitioner guilty.  A show cause notice was issued proposing to impose the punishment of dismissal from service for the proven misconduct against the petitioner. Though the writ petitioner has received the said show cause notice on 25.06.2005, he has not preferred to make any submissions in respect thereof.  After taking into account and consideration the entire material gathered during the course of departmental enquiry, the Superintending Engineer passed final orders on 18.10.2006 imposing upon the petitioner the punishment of dismissal from service.

                In the meantime, Criminal Case No. 185 of 2004 on the file of the Judicial Magistrate of I Class, Parigi, Ranga Reddy District has been concluded.  The learned Judicial Magistrate of I Class convicted the writ petitioner, by his judgment dated 01.12.2009.  Then the writ petitioner preferred an appeal by instituting Criminal Appeal No. 58 of 2009 on the file of the VIth  Additional Sessions Judge (FTC) at Vikarabad.  Though the evidence on record has prima facie disclosed that the petitioner has produced a bogus educational certificate, but nonetheless, the contention canvassed before the learned VIth  Additional Sessions Judge that the trial Court has ignored to,  first of all,  ascertain as to who forged the document in question, has created a doubt in the mind of the learned Sessions Judge with regard to the offence punishable under Section 471 of the Indian Penal Code for which the petitioner was convicted by the trial Court.  As a result of this doubt, the appellate Court acquitted the petitioner of the charge laid against him. 

                Sri Linga Rao, learned counsel for the petitioner would strenuously contend that the same material has been placed both before the departmental authority as well as the criminal Court, inasmuch as the charge laid against the petitioner being substantially the same.  When once a Sessions Court comes to the conclusion that the petitioner is not guilty, a contrary finding arrived at by the departmental agency, at any rate, deserves to be reconsidered.

                Per contra, Ms. Sridevi, learned counsel appearing for the respondents would submit that the finding recorded by the appellate Court is only with regard to the benefit of doubt that is liable to be extended in favour of the appellant before the said Court, whereas after a full-fledged enquiry, the material gathered before the departmental authority would reveal that the petitioner has produced a non-genuine and bogus educational certificate in support of his claim for appointment on compassionate grounds. According to the learned counsel for the respondents, but for the said certificate, the petitioner lacks basic eligibility to be appointed and consequently, he  would not have been appointed at all.

                It is one thing to say that a person has been acquitted by a criminal Court on merits and honourably.  It would be altogether a different thing when a person gets acquitted by a criminal Court all because of a benefit of doubt is extended to him.  The degree and standard of proof in a criminal Court is proof beyond doubt, whereas before the departmental authority, it is preponderance of probability.  It is the petitioner, who has produced the educational certificate before the competent appointing authority in support of his claim for appointment, no doubt, on compassionate grounds. Therefore, burden lies heavily on him to dislodge the adverse material that has been gathered by the department, particularly from the school authorities.  The school clearly disowned to have issued any such certificate. Further, the school authority has categorically stated that the admission number, which was made a mention of in the educational certificate produced by the petitioner, does, in fact, belong to one Sri Anji Reddy, S/o Bheema Reddy and it does not belong to the petitioner.  Therefore, the burden is heavily on the petitioner to discharge.  He failed to establish that the certificate produced by him was genuine.  Therefore, in my opinion, inflicting the punishment of dismissal from service does not warrant any interference.  I am of the firm opinion  that only in the event that a criminal Court acquits a person honourably, would there arise any occasion calling for   re-consideration of the entire matter, but not otherwise.  In fact, this is the same principle, which has been enunciated by the Supreme Court in the judgment rendered in G.M. Tank v. State of Gujarat[1].  I am therefore, of the opinion that there is no merit in this Writ Petition warranting re-consideration of the order of dismissal passed by the Superintending Engineer more than six years ago.

                Therefore, I dismiss this Writ Petition at the admission stage itself.  No costs.

              Consequently, the miscellaneous applications, if any shall also stand dismissed.

_______________________________

NOOTY RAMAMOHANA RAO, J

26^th March 2013

ksld

                                             

---

[1] (2006) 5 SCC 446

without considering the explanation and request for regularization for the demand notice in respect of un- authorized construction, no demolishion shall be made

THE HON’BLE SRI JUSTICE NOUSHAD ALI

W.P. NO. 8085 OF 2013

DATED: 19^TH MARCH, 2013

Between :

Mohammed Arif

Petitioner

And

The Greater Municipal Corporation,

Rep. by its Commissioner, Tank Bund

Hyderabad and another

Respondents

 ORDER:

          This writ petition is being disposed of with the consent of Sri Md. Zia-ul-Haque, learned counsel appearing for the petitioner and Sri Nagesh Bheemapaka, who has taken notice on behalf of the respondents.

          Though the petitioner has challenged the notice No.G-79/UC/ACP6/58/GHMC/2012 dated 24.12.2012 issued under Sec.452(1) and 461(1) of Hyderabad Municipal Corporation Act, 1955, he seeks a limited relief at the hearing of the writ petition to direct the first respondent to pass orders on the representation submitted by the petitioner within a time frame and protect his interest till orders are passed thereon.

          The petitioner claims that he is the absolute owner of property of the premises bearing municipal No. 8-1-164/184, situated in Sy.No.166, Mailardevpally village, Rajendranagar Mandal, Rangareddy District. He has constructed compound wall and a shed on the said land unauthorisedly without obtaining permission from the Municipal Corporation. He is running iron industries in the said premises. Notice under Sec. 452(1) and 461(1) of the Hyderabad Municipal Corporation Act was, therefore, issued to the petitioner on 24.12.2012 calling upon him to submit explanation as to why the unauthorized construction should not be removed. The petitioner states that he has submitted explanation on 14.3.2013. 

          The petitioner does not deny that he has made the construction unauthorisedly. He states that he has made a request for regularization of the construction in terms of Sec. 455(AA) of the Hyderabad Municipal Corporation Act.

          Therefore, his grievance is that his explanation is liable to be considered and until then the respondents are not entitled to demolish the construction. He, therefore, seeks a direction to the first respondent to pass orders on the said representation and until then to safeguard and protect his interest.

          As can be seen from the aforesaid notice, it is evident that the petitioner has given explanation to the show cause notice and, therefore, in all fairness, the respondents are liable to consider the same and pass appropriate orders in accordance with law. Sri Nagesh Bheemapaka, learned Standing Counsel, fairly submits that he has no objection to issue the direction as sought for by the petitioner for consideration of the explanation submitted by him.

          In view of the same, the writ petition is disposed of directing that the first respondent shall consider the request made by the petitioner and pass appropriate orders strictly in accordance with law as expeditiously as possible preferably within a period of four weeks from the date of receipt of a copy of this order. Until orders are passed, the respondents shall not demolish the construction made by the petitioner, pursuant to the notice dated 24.12.2012. No order as to costs.

__________________

Justice Noushad Ali

March 19, 2010

MAS

equal treatment with respect to identically situated contractors was required on the part of the Government.= his request for awarding benefit of escalation without tender discount was denied to him though in identical fact situation similar request of the other contractor i.e., M/s. Raghava Constructions was favourably considered. The petitioner states that identical recommendation was made by the Chief Engineer so far as the petitioner and the said M/s. Raghava Constructions is concerned. But, however, the Government has rejected the petitioner’s request and has favourably granted the request of M/s. Raghava Constructions and thereby, the petitioner complains of arbitrary and discriminatory treatment at the hands of the Government.- the recommendations of the Chief Engineer. So far as the petitioner’s case is concerned, letter of the Chief Engineer dated 01-04-2009 is addressed to the Secretary to the Government. We have also seen similar recommendation by the same Chief Engineer under his letter dated 08-05-2009 so far as M/s. Raghava Constructions is concerned. In our view both the said recommendations are similar. As there were similar problems in handing over required lands, existence of standing crops in the alignment and non-shifting of electrical lines etc., it is for those reasons that in both the cases extension of time was granted in three spells without imposing liquidated damages with respect to both the contractors. It is for this reason that for the works executed beyond the agreement period, specific rate per cubic meter was recommended by the Superintending Engineer and the same was further recommended by the Chief Engineer to the Government for consideration. While under G.O.Rt.No.44, Irrigation and CAD (PW: Major Irrigation. III) Department, dated 19-01-2010, the Government issued orders for considering the petitioner’s case but with tender discount, whereas ten days thereafter under G.O.Rt.NO.75 by the same department, dated 29-01-2010, orders were issued in case of M/s. Raghava Constructions accepting the request for awarding benefit of escalation without tender discount. We are unable to see any distinction between the two contractors who are identically situated and we are also unable to see any justification why both of them are treated differently. The learned single Judge has rightly considered the said aspect and reached the same conclusion as reached by us.

HONOURABLE THE ACTING CHIEF JUSTICE N.V. RAMANA

AND

HONOURABLE SRI JUSTICE VILAS  V. AFZULPURKAR

Writ Appeal No. 214 of 2013

DATED: 11-03-2013

Between:

State of Andhra Pradesh, rep., by its Secretary, Irrigation & CAD (PW.Major Irrigation.III) Department, Hyderabad and another

                   …  Appellants

And                                                                                                    

UAN MAX INFRA LIMITED

(formerly known as M/s. G. Venkata Reddy & Co.,),

Re-designated as Max Infratech (India) Pvt., Ltd., 4^th Floor,

Plot No. 319 & 320, Ayyappa Society, Madhapur, Hyderabad, rep., by its GPA Holder Kasuganti Raj Narsing Rao

                             … Respondent

                                                                           

HONOURABLE THE ACTING CHIEF JUSTICE N.V. RAMANA

AND

HONOURABLE SRI JUSTICE VILAS  V. AFZULPURKAR

Writ Appeal No. 214 of 2013

JUDGMENT: (per Sri N.V. Ramana, ACJ)

          Heard the learned Additional Advocate General and Sri Siva Reddy, learned counsel representing Sri G. Madhusudhan Reddy, learned counsel for the respondent.

          The respondent – writ petitioner who was earlier operating in the name and style of M/s. G. Venkata Reddy & Co., was the successful tenderer for Earth Work Excavation and Forming Embankment of DBM-60 (Thallampad Branch Canal) from
KM 50.00 to 50.600.  Apart from the petitioner, there were other contractors covering three other connected works and one of them was M/s. Raghava Constructions.  All the works tendered to the respective contractors were contiguous to each other and the problems relating to land acquisition and excavation works faced by all the contractors were almost identical.  The grievance of the petitioner in the writ petition was that his request for awarding benefit of escalation without tender discount was denied to him though in identical fact situation similar request of the other contractor i.e., M/s. Raghava Constructions was favourably considered.  The petitioner states that identical recommendation was made by the Chief Engineer so far as the petitioner and the said M/s. Raghava Constructions is concerned.  But, however, the Government has rejected the petitioner’s request and has favourably granted the request of M/s. Raghava Constructions and thereby, the petitioner complains of arbitrary and discriminatory treatment at the hands of the Government.

          The learned single Judge under the impugned judgment has considered the said grievance in some detail and was of the view that though the said recommendation made by the Chief Engineer was for a consideration of Administrative Department, Finance Department or the Government, 

equal treatment with respect to identically situated contractors was required on the part of the Government.  The learned single Judge therefore holds that though the claim is purely in the discretion of the Administrative Department, constitutional guarantee of equality before law and unreasonable discrimination practised by the Government for no explicable reason warranted the order rejecting the petitioner’s case to be set aside and consequently the learned single Judge directed the 1^st appellant to reconsider its order in G.O.Rt.No.44, dated 19-01-2010 and extend the same benefit to the petitioner as was extended to M/s. Raghava Constructions while issuing G.O.Rt.Nos.75, 76 and 77, all dated 29-01-2010.

          The learned Additional Advocate General who appeared, in support of the appeal, contended that the grant of escalation with tender discount was within the discretion of the Government and the same being on par with the rates quoted by the petitioner for the tender, the impugned order cannot be questioned by him in the writ petition.  He also submitted that both the contractors were not identically situated and recommendations were also different and distinct in both the cases and, as such, the learned single Judge could not have directed reconsideration of the petitioner’s case.  It was also contended that the petitioner having received the entire payment without protest approached this Court after a long lapse of time and, as such, he is not entitled for the relief sought for.

We have seen the recommendations of the Chief Engineer.  So far as the petitioner’s case is concerned, letter of the Chief Engineer dated 01-04-2009 is addressed to the Secretary to the Government.  We have also seen similar recommendation by the same Chief Engineer under his letter dated 08-05-2009 so far as M/s. Raghava Constructions is concerned.  In our view both the said recommendations are similar.    As there were similar problems in handing over required lands, existence of standing crops in the alignment and non-shifting of electrical lines etc., it is for those reasons that in both the cases extension of time was granted in three spells without imposing liquidated damages with respect to both the contractors.  It is for this reason that for the works executed beyond the agreement period, specific rate per cubic meter was recommended by the Superintending Engineer and the same was further recommended by the Chief Engineer to the Government for consideration.  While under G.O.Rt.No.44, Irrigation and CAD (PW: Major Irrigation. III) Department, dated 19-01-2010, the Government issued orders for considering the petitioner’s case but with tender discount, whereas ten days thereafter under G.O.Rt.NO.75 by the same department, dated
29-01-2010, orders were issued in case of M/s. Raghava Constructions accepting the request for awarding benefit of escalation without tender discount.  We are unable to see any distinction between the two contractors who are identically situated and we are also unable to see any justification why both of them are treated differently.  The learned single Judge has rightly considered the said aspect and reached the same conclusion as reached by us.  We are, therefore, unable to accept the primary contention of the learned Additional Advocate General that the respondent – writ petitioner’s case stands on a different footing than that of the other contractor and consequently, the order of the learned single Judge directing the Government to accord equal treatment to the petitioner on par with the other contractor, needs no interference.

So far as the other contention of the learned Additional Advocate General on the question of delay is concerned, we are not impressed with the said contention inasmuch as rejection so far as the petitioner is concerned is dated 19-01-2010, whereas ten days thereafter the other contractor’s case was favourably considered by the later G.O., dated 29-01-2010.  When the petitioner came to know of it, he had obtained copies of the orders and has approached this Court by filing the present writ petition in July, 2011.  It cannot therefore be said that the petitioner has approached this Court belatedly.  Merely on account thereof, there is any impediment in entertaining the writ petition.  The said contention is also therefore rejected.

Consequently, the writ appeal fails and it is accordingly dismissed.  However, there shall be no order as to costs.

N.V. Ramana, ACJ

VILAS V. AFZULPURKAR, J

11^th March, 2013

ks

last seen circumstance alone is not sufficient to fasten the guilt of the accused= The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2.” 13. Except the last seen theory, there is no other incriminating evidence to show that the accused committed the offence punishable under Section 302 r/w 34 IPC. Hence, in the absence of any other corroborative evidence adduced by the prosecution, this Court is of the view that the trial court rightly acquitted the accused and we see absolutely no reasons to interfere with the same.

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

 

Monday, the 11^th day of March,

Two Thousand and Thirteen

 

PRESENT

 

HON'BLE SRI JUSTICE

K.C. BHANU

AND

 HON'BLE SRI JUSTICE

M.S. RAMACHANDRA RAO

 

CRIMINAL APPEAL No.291 of 2013

 

 

Between:

The State of A.P., rep. by its Public Prosecutor

… Appellant

And

 

Gaini Narayana and others

… Respondents

 

 

 

 

 

 

 

 

 

 

 

This Court made the following:

HON'BLE SRI JUSTICE

K.C. BHANU

AND

HON'BLE SRI JUSTICE

M.S. RAMACHANDRA RAO

 

CRIMINAL APPEAL No.291 of 2013

JUDGMENT:        (per the Hon’ble Sri Justice K.C.Bhanu)

This Criminal Appeal, under Section 378(1) & (3) of the Code of Criminal Procedure, 1973, (for short, "Cr.P.C.") is filed by the
State against the Judgment, dated 05.10.2007, in Sessions Case No.270 of 2005 on the file of the Court of
VII Additional Sessions Judge, (Fast Track Court), Nizamabad at Bodhan, whereunder and whereby the respondents/accused were found not guilty of the offence punishable under Section 302 read with 34 IPC and were acquitted under Section 235(1) Cr.P.C.

2. The prosecution case in brief may be stated as follows:

On 26.01.2005, at about 11:00 AM, the deceased did not return to the house till night.  Then P.Ws.1 to 3 searched for the deceased, but invain.  On 27.01.2005 at 11:00 AM, while they were ready to leave to their fields, P.W.5 found the dead body of the deceased near Pillavagu Check Dam and he informed the same to the family members of the deceased and P.W.1.  The police registered a case in Crime No.16 of 2005 for the offence punishable under Section 302 IPC.  During the course of investigation, the police conducted inquest over the dead body of the deceased; observed the scene of offence; prepared rough sketch of the scene of offence; and sent the dead body for post mortem examination.  After completion of investigation, the police filed charge sheet.

3. On appearance of all the accused, charge under Section 302 r/w 34 IPC was framed against all the accused. When the charge was read over and explained to the accused in telugu, they pleaded not guilty and claimed to be tried.

4. To substantiate its case, the prosecution examined P.Ws.1 to 15 and got marked Exs.P.1 to P.10 besides case properties M.Os.1 to 11.  No oral or documentary evidence was adduced on behalf of the defence.

5. After the prosecution evidence is closed, the accused were examined under Section 313 Cr.P.C. for which they denied the incriminating evidence appearing against them in the evidence of the prosecution witnesses. 

6. The trial court on appreciation of the oral and documentary evidence, found the accused not guilty of the charge framed against them and, accordingly, acquitted them.   Challenging the same, this appeal is filed

7.         Now, the point for determination is whether the prosecution proved its case beyond all reasonable doubt for the charge levelled against them and whether the judgment of the trial court is sustainable?

POINT:-

8.         Learned Additional Public Prosecutor contended that A1 was in the company of the deceased prior to the incident and, therefore, inference can be drawn that he alone committed the murder of the deceased and he prays to admit the appeal.

9. Ordinarily the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal.  The Court of appeal is required to take into consideration the reasons given by the trial court in passing the judgment of acquittal very carefully, and if such reasons are consistent with the evidence, as a matter of prudence, this Court should not interfere with the impugned judgment by
re-appreciating the evidence and to take some other view.  The appellant must show compelling or substantial reasons in view of the decision reported in Chandrappa v. State of Karnataka[1], wherein at para 42 it was held as follows:

“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

10. It is fairly well settled that when a case rests upon circumstantial evidence, the prosecution must establish all the links in the chain of circumstances, so that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.  On this aspect, it is pertinent to refer to a decision reported in Padala Veera Reddy v. State of A.P.,[2]wherein at para 10 it was held as follows:-

“(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.”

11. In the case on hand, the circumstantial witnesses are P.W.1 to 3, who are the close relatives of the deceased. Except stating that the deceased left the house and did not come to the house till night, P.Ws.1 to 3 did not state anything incriminating against the accused  to connect them with the offence, and only on coming to know about the death of the deceased from P.W.4, they lodged a report.  P.W.4, who is running a hotel, only deposed that the deceased alone came to his hotel and purchased some eatables and left the hotel.  P.W.5 deposed that he found the dead body of the deceased in pilla vagu check dam.  The evidence of P.W.6 would go to show that in the month of January, when he went to check dam of pilla vagu, he found the deceased in the company of A1 and both of them were playing cards and at about 04:00 PM they stopped the game and later the deceased and A1 went towards the village on cycle. P.W.7 also deposed in the same lines as stated by P.W.6.  P.W.8 stated that A1 to A3 were found near the light post at the house of one Chakali Narsimloo, i.e., on the way to the village from pillavagu and they were coming into the village.  Similarly, the evidence of P.W.9 would go to show that the deceased and A1 were proceeding towards Pillavagu check dam and on the next day, he came to know about the death of the deceased and found the dead body.  Except one circumstance that the deceased was last seen in the company of the accused, there are no other incriminating circumstances in the evidence of prosecution witnesses to connect the accused with commission of the offence.  The said 

last seen circumstance alone is not sufficient to fasten the guilt of the accused 

in this case.

12. On this aspect it is pertinent to refer to a decision reported in State of U.P. v. Satish[3], wherein at para 22 it was held as follows:

“22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2.”

13. Except the last seen theory, there is no other incriminating evidence to show that the accused committed the offence punishable under Section 302 r/w 34 IPC.  Hence, in the absence of any other corroborative evidence adduced by the prosecution, this Court is of the view that the trial court rightly acquitted the accused and we see absolutely no reasons to interfere with the same.  The appeal fails and is liable to be dismissed.

14. In the result, the Criminal Appeal is dismissed confirming the judgment of the trial Court.

________________

 K.C. BHANU, J

                                                                          

                                                                       _____________________________            

M.S. RAMACHANDRA RAO, J

11.03.2013

lmv.

HON'BLE SRI JUSTICE

K.C. BHANU

AND

 HON'BLE SRI JUSTICE

M.S. RAMACHANDRA RAO

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CRIMINAL APPEAL No.291 of 2013

11.03.2013

lmv

---

[1] 2007(4) SCC 415

[2] AIR 1990 Supreme Court 79

[3] (2005) 3 SCC 114