Erappa Vs. Swamy - Court Judgment

Excerpt:
karnataka forest act, 1963 - section 104d : criminal procedure code, 1973 (central act no. 2 of 1974) - section 167(2) - section applicable only to grant of bail not remand to judicial custody granted under code - chargesheet not filed within 60 or 90 days, accused entitled to release on bail under section 167(2) of code.; section 104d is applicable only with regard to the question of granting bail and it does not deal with the power of the magistrate to remand the accused to custody. even for forest offences the only provisions under which the magistrate could grant judicial custody is under section 167 cr.p.c... when once the charge sheet is not filed within the period of 60 days or 90 days, the accused is entitled to be released on bail by virtue of section 167(2) cr.p.c., and this provision is not in any way affected by section 104d of the forest act. - indian evidence act, 1872 section 114, illustration (g); [s.abdul nazeer, j] regular first appeal - suit for permanent injunction order of restraint sought by the plaintiff against the defendants from interfering with his peaceful possession and enjoyment of the schedule property-claim of the plaintiffs is based on the agreement to sell, wherein the defendants have delivered possession of the scheduled property - dismissal of suit appealed against - re-appreciation of evidence on record- failure of the defendants 1 and 2 to prove that ex..p2 agreement to sell, is a concocted document - no material on record to show that the defendants are in possession of the schedule property. defendants have not entered the witness box and subjected to cross examination held, defendant nos. 1 and 2 have failed to prove that ex.p2 is a concocted document as contended by them. ex.p2 contains a recital that plaintiff was put in possession of the suit schedule property on the same day. defendant nos. 1 and 2 have not produced any material to contend that they continued to be in possession of the property in question even after the date of execution of the sale deed. no doubt they rely on ex.d32, a receipt for having filed an application seeking regularisation of unauthorised construction over the suit schedule property. however, ex.d32 does not contain the date or the description of the property. once the possession has been delivered to the plaintiff, the burden is on defendant nos. 1 and 2 to establish that they continued to be in possession of the property, which has not been discharged by them. from the material placed on record, it is clear that plaintiff is in possession and enjoyment of the suit schedule property from the date of execution of ex.p2. further, the case of the defendants is that they have not executed either agreement ex.p2 or the receipt at ex.p3. however, the scribe has clearly stated that he has read over the document to the defendants and thereafter they have signed the document. the other witness was one sri kalachar, who is none other than the husband of the second defendant. the plaintiff has assigned cogent reasons for nor examining kalachar. however, neither the defendants have entered the witness box nor kalachari was examined by them. though the defendants examined their power of attorney holder d.w1, he has clearly stated that, as stated by the defendants, he is deposing on their behalf. he was not aware of the transaction nor he was resent at the time of execution of ex.p1 and ex.p2. his evidence is hearsay evidence. one of the defendants is admittedly residing at bangalore. non-examination of defendants is fatal to their case. the defendants having not entered the witness box and having not presented themselves for cross-examination, an adverse inference has to be drawn against them on the basis of the principles contained in illustration (g) of section 114 of the evidence act [s. abdul nazeer, j.] a) evidence act, 1872 - illustration (g) of section 114 - inference to be drawn under i code of civil procedure, 1908 - section 96 j regular first appeal - suit for permanent injunction - order of restraint sought by the plaintiff against the defendants: from interfering with his peaceful possession and enjoyment of the schedule property - claim of the plaintiffs is based on the agreement to sell, wherein the defendants have delivered possession of the scheduled property - dismissal of suit -1 appealed against - re-appreciation of evidence on record-failure of the defendants 1 and 2 to prove that ex.p2| agreement to sell, is a concocted document - no material on record to show that the defendants are in possession of the schedule property. defendants have not entered the witness box and subjected to cross examination - adverse inference to be drawn against the defendants as per the principle contained in illustration (g) of section 114 of the evidence a - held, defendant nos.1 and 2 have failed to prove that ex.p is a concocted document as contended by them. ex.p2 contain a recital that plaintiff was put in possession of the suit schedul property on the same day. defendant nos.1 and 2 have produced any material to contend that they corinued to be in possession of the property in question even afw the date of execution of the sale deed. no doubt they rebon ex.d32, a receipt for having filed an application seeking regularization of unauthorized construction over the suit schelule property. however, ex.d32 does not contain the date or lie description of the property. once the possession has bee delivered to the plaintiff, the burden is on defendant nos.1 and 2 to establish that they continued to be in possession of the property, which has not been discharged by them. from the ifterial placed on record, it is clear that plaintiff is in pessession and enjoyment of the suit schedule property fro the date of execution of ex.p2. - further held, tie case of the defendants is that they have not executed either agreement ex.p2 or the receipt at ex.p3. however, the scribe has clearly stated that he has read over the document to for defendants and thereafter they have signed the document. the other witness was one sri kalachari, who is none (there than the husband of the second defendant. the plaint it has assigned cogent reasons for not examining kalachari. however, neither the defendants have entered the witness box nor kalachari was examined by them. though the defendants examined their power of attorney holder d.w1, he has clearly stated that, as stated by the defendants, he is deposing on the behalf. he was not aware of the transaction nor he was present at the time of execution of ex.pl and ex.p2. his evidence is hearsay evidence. one of the defendants is admittedly residing at bangalore. non-examination of defendants is fatal to their case. the defendants having not entered the witness box and having not presented themselves for cross-examination, an. adverse inference has to be drawn against them on the basis of the principles contained in illustration (g) of section 114 of the evidence act. b) transfer of property act, 1882 - section 53-a1 doctrine of part performance embodied under - object and intent of section 53-a - held, the doctrine of part performance embodied in section 53-a of the transfer of property act is an equitable doctrine. the object of this section is to prevent a transferor or his successor in interest from taking any advantage on account of the non-registration of the document, provided the transferee has performed his part of the contract and in pursuance thereof has taken possession of some immovable property. - the essentials of section 53-a are, (i) a contract to transfer immovable property; (ii) the contract must be for consideration; (iii) it must be in writing signed by or on behalf of the transferor; (iv) the terms can be ascertained from the writing; (v) the transferee has taken possession or is already in possession of the property; (vi) he has done some act in furtherance of the contract; and (vii) he has performed or is willing to perform his part of the contract.- on facts, held, in the present case, after entering into contract as per ex.p2, the plaintiff was put in possession of the property. he was required to pay a sum of rs.40,0007- within a period of three months from the date of ex.p2. accordingly, the plaintiff has paid a sum of rs.40,0007- as per ex.p3 within the said period. thus, he has done something in furtherance of the contract and he was always been ready and willing to perform the contract. -plaintiff has established that the defendants have agreed to sell the suit schedule property to the plaintiff under the agreement at ex.p2 and that the plaintiff has been in possession and enjoyment of the said property from the date of the said document. 'the plaintiff is therefore entitled to institute a suit for injunction against the defendants basing his suit under section 5'3-a of the transfer of property act, even though the period of limitation for bringing a suit for specific performance has expired. appeal is allowed. - 3. it is no doubt true that section 104-d of the forest act stipulates that no person accused of the forest offence punishable under sections 86, 87 or 104-a or in respect of ivory shall be released on bail, if the prosecution opposes the application and if the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence.ordervenkataraman, j.1. heard2. the petitioners are in judicial custody from 16.7.93. they were arrested in connection with the offences punishable under sections 86 and 87 of the karnataka forest act. as the charge sheet was not filed within 60 days from the date of their remand to judicial custody the petitioners sought for bail under section 167(2) cr.p.c. the learned magistrate relying on section 104-d of the karnataka forest act has declined to release them on bail on the ground that that provision overrides section 167(2) cr.p.c.3. it is no doubt true that section 104-d of the forest act stipulates that no person accused of the forest offence punishable under sections 86, 87 or 104-a or in respect of ivory shall be released on bail, if the prosecution opposes the application and if the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence. it is also true that this is a special provision and this provision is applicable notwithstanding anything contained in the criminal procedure code to the contrary with regard to the grant of bail. this provision is applicable only with regard to the question of granting bail and it does not deal with the power of the magistrate to remand the accused to custody. even for forest offences the only provision under which the magistrate could grant judicial custody is under section 167 cr.p.c. section 167 specifically stipulates that the magistrate can authorise detention of the accused for a term not exceeding 15 days at a time and a total period of 90 days, where the investigation relates to offence punishable with death or imprisonment for life or a term not less than 10 years and 60 days where the investigation relates to any other offence. under this provision the power of the magistrate to detain the accused comes to an end after the expiry of 90 days or 60 days as the case may be. it is only if a charge sheet is filed within that period and if the magistrate takes cognizance then he can remand the accused under section 309 cr.p.c. the learned magistrate has not at all taken this aspect into consideration. when once the charge sheet is not filed within the period of 60 days or 90 days the accused is entitled to be released on bail by virtue of section 167(2) cr.p.c. and this provision is not in any way affected by section 104-d of the forest act.4. in rajnikant jivanlal patel and anr. v. intelligence officer, narcotic control bureau, new delhi : 1990 crilj62 the accused had been arrested for offences under n.d.p.s. act which also contains provisions most stringent than section 104-d of the forest act. the supreme court in that case has held that an order for release on bail under section 167(2)(a) is release on bail for default of the prosecution in filing charge sheet within the prescribed period and this right is absolute. the supreme court has further held that in such a case the magistrate has to pass an order for bail and communicate the same to the accused to furnish requisite bail bonds.5. in the present case, as it is undisputed that the charge sheet was not filed within 60 days from the date of the remand of the accused the accused petitioners have become entitled to bail and the order of the magistrate declining to release on bail cannot be sustained.6. for the reasons stated above this petition is allowed and the petitioners are ordered to be released on their executing self-bond for rs. 10,000/- each with one surety in likes us to the satisfaction of the lower court.

Judgment:
ORDER

Venkataraman, J.

1. Heard

2. The petitioners are in Judicial custody from 16.7.93. They were arrested in connection with the offences punishable under Sections 86 and 87 of the Karnataka Forest Act. As the charge sheet was not filed within 60 days from the date of their remand to judicial custody the petitioners sought for bail under Section 167(2) Cr.P.C. The learned Magistrate relying on Section 104-D of the Karnataka Forest Act has declined to release them on bail on the ground that that provision overrides Section 167(2) Cr.P.C.

3. It is no doubt true that Section 104-D of the Forest Act stipulates that no person accused of the forest offence punishable under Sections 86, 87 or 104-A or in respect of ivory shall be released on bail, if the prosecution opposes the application and if the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence. It is also true that this is a special provision and this provision is applicable notwithstanding anything contained in the Criminal Procedure Code to the contrary with regard to the grant of bail. This provision is applicable only with regard to the question of granting bail and it does not deal with the power of the Magistrate to remand the accused to custody. Even for forest offences the only provision under which the Magistrate could grant Judicial custody is under Section 167 Cr.P.C. Section 167 specifically stipulates that the Magistrate can authorise detention of the accused for a term not exceeding 15 days at a time and a total period of 90 days, where the investigation relates to offence punishable with death or imprisonment for life or a term not less than 10 years and 60 days where the investigation relates to any other offence. Under this provision the power of the Magistrate to detain the accused comes to an end after the expiry of 90 days or 60 days as the case may be. It is only if a charge sheet is filed within that period and if the Magistrate takes cognizance then he can remand the accused under Section 309 Cr.P.C. The learned Magistrate has not at all taken this aspect into consideration. When once the charge sheet is not filed within the period of 60 days or 90 days the accused is entitled to be released on bail by virtue of Section 167(2) Cr.P.C. and this provision is not in any way affected by Section 104-D of the Forest Act.

4. In RAJNIKANT JIVANLAL PATEL AND ANR. v. INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU, NEW DELHI : 1990 CriLJ62 the accused had been arrested for offences under N.D.P.S. act which also contains provisions most stringent than Section 104-D of the Forest Act. The Supreme Court in that case has held that an order for release on bail under Section 167(2)(a) is release on bail for default of the prosecution in filing charge sheet within the prescribed period and this right is absolute. The Supreme Court has further held that in such a case the Magistrate has to pass an order for bail and communicate the same to the accused to furnish requisite bail bonds.

5. In the present case, as it is undisputed that the charge sheet was not filed within 60 days from the date of the remand of the accused the accused petitioners have become entitled to bail and the order of the Magistrate declining to release on bail cannot be sustained.

6. For the reasons stated above this Petition is allowed and the petitioners are ordered to be released on their executing self-bond for Rs. 10,000/- each with one surety in likes us to the satisfaction of the lower Court.