Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment

Excerpt:

Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 120]Code Context                                echo "<div class='table-bordered'><b>Excerpt:</b><br/>";

                                    if (trim($desc['Judgement']['casenote'])) {

                                        echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['casenote']))), $query);
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
include - APP/View/Case/amp.ctp, line 120
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 120]Code Context                                echo "<div class='table-bordered'><b>Excerpt:</b><br/>";

                                    if (trim($desc['Judgement']['casenote'])) {

                                        echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['casenote']))), $query);
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
include - APP/View/Case/amp.ctp, line 120
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5.....

Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]Code Context                                    }

                                //highest occurence of word in the judgement

                                echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
include - APP/View/Case/amp.ctp, line 123
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]Code Context                                    }

                                //highest occurence of word in the judgement

                                echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
include - APP/View/Case/amp.ctp, line 123
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

ordermadhusudan rao, j.1. this revision is directed against the convictions and sentences passed by the learned judicial ist class magistrate, rajam in c. c. no. 81/73 on the file of his court. the petitioners are the eight accused in the case. they have been convicted under section 188, i.p.c. and each has been sentenced to pay a fine of rs. 50 with a default sentence of one week simple imprisonment.2. the case of the prosecution is that the taluk magistrate, cheepurupalli, passed an ex parte order under section 144(2), cr. p. c. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one boddepalli ramulu, who filed a petition under section 144, cr. p. c. in m. c. no. 11/70 and that the petitioners.....

Judgment:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Madhusudan Rao, J.',
	(int) 1 => '<p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.',
	(int) 2 => '<p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.',
	(int) 3 => '<p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.',
	(int) 4 => '<p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,',
	(int) 5 => '<p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.',
	(int) 6 => '<p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:',
	(int) 7 => '<p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...',
	(int) 8 => '<p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:',
	(int) 9 => '<p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
	(int) 10 => '<p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.',
	(int) 11 => '<p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.',
	(int) 12 => '<p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p>',
	(int) 13 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 0
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

ORDER

Madhusudan Rao, J.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Madhusudan Rao, J.',
	(int) 1 => '<p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.',
	(int) 2 => '<p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.',
	(int) 3 => '<p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.',
	(int) 4 => '<p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,',
	(int) 5 => '<p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.',
	(int) 6 => '<p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:',
	(int) 7 => '<p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...',
	(int) 8 => '<p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:',
	(int) 9 => '<p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
	(int) 10 => '<p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.',
	(int) 11 => '<p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.',
	(int) 12 => '<p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p>',
	(int) 13 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 1
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

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

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Madhusudan Rao, J.',
	(int) 1 => '<p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.',
	(int) 2 => '<p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.',
	(int) 3 => '<p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.',
	(int) 4 => '<p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,',
	(int) 5 => '<p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.',
	(int) 6 => '<p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:',
	(int) 7 => '<p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...',
	(int) 8 => '<p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:',
	(int) 9 => '<p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
	(int) 10 => '<p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.',
	(int) 11 => '<p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.',
	(int) 12 => '<p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p>',
	(int) 13 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 2
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

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

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Madhusudan Rao, J.',
	(int) 1 => '<p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.',
	(int) 2 => '<p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.',
	(int) 3 => '<p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.',
	(int) 4 => '<p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,',
	(int) 5 => '<p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.',
	(int) 6 => '<p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:',
	(int) 7 => '<p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...',
	(int) 8 => '<p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:',
	(int) 9 => '<p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
	(int) 10 => '<p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.',
	(int) 11 => '<p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.',
	(int) 12 => '<p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p>',
	(int) 13 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 3
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

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

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Madhusudan Rao, J.',
	(int) 1 => '<p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.',
	(int) 2 => '<p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.',
	(int) 3 => '<p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.',
	(int) 4 => '<p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,',
	(int) 5 => '<p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.',
	(int) 6 => '<p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:',
	(int) 7 => '<p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...',
	(int) 8 => '<p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:',
	(int) 9 => '<p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
	(int) 10 => '<p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.',
	(int) 11 => '<p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.',
	(int) 12 => '<p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p>',
	(int) 13 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 4
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

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

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Madhusudan Rao, J.',
	(int) 1 => '<p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.',
	(int) 2 => '<p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.',
	(int) 3 => '<p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.',
	(int) 4 => '<p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,',
	(int) 5 => '<p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.',
	(int) 6 => '<p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:',
	(int) 7 => '<p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...',
	(int) 8 => '<p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:',
	(int) 9 => '<p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
	(int) 10 => '<p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.',
	(int) 11 => '<p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.',
	(int) 12 => '<p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p>',
	(int) 13 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 5
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

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

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Madhusudan Rao, J.',
	(int) 1 => '<p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.',
	(int) 2 => '<p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.',
	(int) 3 => '<p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.',
	(int) 4 => '<p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,',
	(int) 5 => '<p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.',
	(int) 6 => '<p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:',
	(int) 7 => '<p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...',
	(int) 8 => '<p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:',
	(int) 9 => '<p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
	(int) 10 => '<p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.',
	(int) 11 => '<p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.',
	(int) 12 => '<p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p>',
	(int) 13 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 6
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

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

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Madhusudan Rao, J.',
	(int) 1 => '<p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.',
	(int) 2 => '<p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.',
	(int) 3 => '<p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.',
	(int) 4 => '<p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,',
	(int) 5 => '<p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.',
	(int) 6 => '<p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:',
	(int) 7 => '<p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...',
	(int) 8 => '<p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:',
	(int) 9 => '<p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
	(int) 10 => '<p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.',
	(int) 11 => '<p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.',
	(int) 12 => '<p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p>',
	(int) 13 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 7
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

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

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Madhusudan Rao, J.',
	(int) 1 => '<p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.',
	(int) 2 => '<p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.',
	(int) 3 => '<p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.',
	(int) 4 => '<p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,',
	(int) 5 => '<p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.',
	(int) 6 => '<p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:',
	(int) 7 => '<p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...',
	(int) 8 => '<p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:',
	(int) 9 => '<p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
	(int) 10 => '<p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.',
	(int) 11 => '<p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.',
	(int) 12 => '<p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p>',
	(int) 13 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 8
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

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

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Madhusudan Rao, J.',
	(int) 1 => '<p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.',
	(int) 2 => '<p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.',
	(int) 3 => '<p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.',
	(int) 4 => '<p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,',
	(int) 5 => '<p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.',
	(int) 6 => '<p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:',
	(int) 7 => '<p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...',
	(int) 8 => '<p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:',
	(int) 9 => '<p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
	(int) 10 => '<p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.',
	(int) 11 => '<p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.',
	(int) 12 => '<p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p>',
	(int) 13 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 9
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

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

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Madhusudan Rao, J.',
	(int) 1 => '<p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.',
	(int) 2 => '<p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.',
	(int) 3 => '<p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.',
	(int) 4 => '<p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,',
	(int) 5 => '<p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.',
	(int) 6 => '<p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:',
	(int) 7 => '<p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...',
	(int) 8 => '<p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:',
	(int) 9 => '<p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
	(int) 10 => '<p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.',
	(int) 11 => '<p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.',
	(int) 12 => '<p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p>',
	(int) 13 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 10
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

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

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Madhusudan Rao, J.',
	(int) 1 => '<p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.',
	(int) 2 => '<p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.',
	(int) 3 => '<p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.',
	(int) 4 => '<p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,',
	(int) 5 => '<p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.',
	(int) 6 => '<p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:',
	(int) 7 => '<p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...',
	(int) 8 => '<p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:',
	(int) 9 => '<p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
	(int) 10 => '<p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.',
	(int) 11 => '<p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.',
	(int) 12 => '<p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p>',
	(int) 13 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 11
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

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

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Madhusudan Rao, J.',
	(int) 1 => '<p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.',
	(int) 2 => '<p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.',
	(int) 3 => '<p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.',
	(int) 4 => '<p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,',
	(int) 5 => '<p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.',
	(int) 6 => '<p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:',
	(int) 7 => '<p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...',
	(int) 8 => '<p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:',
	(int) 9 => '<p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
	(int) 10 => '<p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.',
	(int) 11 => '<p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.',
	(int) 12 => '<p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p>',
	(int) 13 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 12
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

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

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '432975',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Kothakota Papayya and ors.',
			'authreffered' => '',
			'casename' => 'Kothakota Papayya and ors. Vs. State',
			'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1975-03-31',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Madhusudan Rao, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Madhusudan Rao, J.</p><p style="text-align: justify;">1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p style="text-align: justify;">2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p style="text-align: justify;">3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p style="text-align: justify;">4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p style="text-align: justify;">5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p style="text-align: justify;">6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p style="text-align: justify;">Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p style="text-align: justify;">It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p style="text-align: justify;">(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p style="text-align: justify;">(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p style="text-align: justify;">There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p style="text-align: justify;">7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1975CriLJ1784',
			'ratiodecidendi' => '',
			'respondent' => 'State',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kothakota-papayya-ors-vs-state',
	'args' => array(
		(int) 0 => '432975',
		(int) 1 => 'kothakota-papayya-ors-vs-state'
	)
)
$title_for_layout = 'Kothakota Papayya and ors Vs State - Citation 432975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '432975',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Kothakota Papayya and ors.',
		'authreffered' => '',
		'casename' => 'Kothakota Papayya and ors. Vs. State',
		'casenote' => ' - ALL INDIA SERVICES ACT, 1951.Sections 8 & 11 & A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, Rule 5: [V.V.S. Rao, G. Yethirajulu & G. Bhavani Prasad, JJ] Refusal by Landlord to receive rent - Deposit of rent in Court - Held, A tenant has the option to take recourse to Section 8 in case of refusal or evasion by landlord to receive rent and if landlord were  to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with Sub-rules (1) to (3) of Rule 5. The notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of Rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. The payment or deposit of rent under Section 11 read with sub-rule (6) of Rule 5 arises only in respect of a tenant who did not take recourse to Section 8 or Section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. Any violation of Section 11(1) to (3) and sub-rule (6) of Rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of Section 11. Thus, the provisions of Section 11 and sub-rule (6) of Rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. The forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under Rule 5(6) read with sub-section (1) of Section 11. The object and effect of Section 11 and sub-rules (1) to (5) to Rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. Consequently, while taking recourse to Section 8 by tenant is optional, once that option is exercised, compliance with Sub-rules (1) to (5) of Rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. While deposit of rent in terms of provisions of Act and the Rules amounts to valid tender of rent to landlord, the failure to comply with Rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of Controller or appellate authority, as the case may be, so as to enable Controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. Thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of Controller within a reasonable time so that Rent Controller can take necessary action for service of notice of deposit under sub-rule (4) of Rule 5 of the Rules within seven days of such delivery. In the absence of compliance in so depositing rent and delivering challan in the office of Controller, tenant shall be deemed to have committed wilful default. -  (1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1975-03-31',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Madhusudan Rao, J.',
		'judgement' => 'ORDER<p>Madhusudan Rao, J.</p><p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.</p><p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.</p><p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.</p><p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,</p><p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.</p><p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:</p><p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...</p><p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:</p><p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.</p><p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.</p><p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.</p><p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1975CriLJ1784',
		'ratiodecidendi' => '',
		'respondent' => 'State',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'kothakota-papayya-ors-vs-state'
$args = array(
	(int) 0 => '432975',
	(int) 1 => 'kothakota-papayya-ors-vs-state'
)
$url = 'https://sooperkanoon.com/case/amp/432975/kothakota-papayya-ors-vs-state'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Madhusudan Rao, J.',
	(int) 1 => '<p>1. This revision is directed against the convictions and sentences passed by the learned Judicial Ist Class Magistrate, Rajam in C. C. No. 81/73 on the file of his Court. The petitioners are the eight accused in the case. They have been convicted under Section 188, I.P.C. and each has been sentenced to pay a fine of Rs. 50 with a default sentence of one week simple imprisonment.',
	(int) 2 => '<p>2. The case of the prosecution is that the Taluk Magistrate, Cheepurupalli, passed an ex parte order under Section 144(2), Cr. P. C. on 4-8-1970 restraining the eight petitioners from interfering with the possession and enjoyment of certain lands said to be in the possession of one Boddepalli Ramulu, who filed a petition under Section 144, Cr. P. C. in M. C. No. 11/70 and that the petitioners disobeyed the order in the morning of 8-9-1970. The plea of the revision petitioners was that the Magistrate who passed the order under Section 144, Cr. P. C. had no jurisdiction to pass it and that at any rate they were also continuing to be in possession of the land mentioned in the order and further that they did not have any knowledge of the order until they were actually prosecuted in the Court, for the alleged disobedience of the order.',
	(int) 3 => '<p>3. In support of its case, the prosecution has examined four witnesses and filed Exs. P-1 to P-4. The petitioners did not examine any witnesses on their behalf. On a consideration of the evidence, the learned Judicial Ist Class Magistrate held against the petitioners and accordingly convicted and sentenced them as stated above.',
	(int) 4 => '<p>4. In this revision, Sri A. Surya Rao, the learned Counsel for the petitioners, has raised two contentions. The first is that there is no proof of the Taluk Magistrate, Cheepurupalli, being specially empowered to issue an order under Section 144, Cr. P. C. The second contention is that there is no proof of the petitioners having been served with the order under Section 144, Cr. P. C,',
	(int) 5 => '<p>5. So far as the first contention is concerned, it may have to be observed even at the outset that it is a mere contention without any valid basis. The order passed by the Taluk Magistrate, Cheepurupalli. Ex. P-l bears the seal of the Court. Except a vague contention of the Magistrate having no jurisdiction to issue the order under Section 144, Cr. P. C. it was not urged before the trial court that the Magistrate was not specially empowered to issue orders under Section 144, Cr. P. C. Admittedly, the Taluk Magistrate, Cheepurupalli, is a Second Class Magistrate and there is no objection for his being specially empowered to issue orders under Section 144, Cr. P. C. Illustration (e) to Section 114 of the Indian Evidence Act provides 'that judicial and official acts have been regularly performed'. In the absence of specific contention and proof, it shall have to be presumed that the judicial order under Section 144, Cr. P.C. passed by the Magistrate was regularly passed with the necessary jurisdiction. In this view of the matter, I do not find any substance in this contention.',
	(int) 6 => '<p>6. So far as the second contention is concerned, it does not appear that it is without substance. None of the four witnesses examined on behalf of the prosecution deposed anything about the service of the order under Section 144(2), Cr. P. C. on any of the petitioners. Section 188, I.P.C. reads as follows:',
	(int) 7 => '<p>Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction shall...',
	(int) 8 => '<p>It is necessary for an offence under Section 188, I.P.C. for the prosecution to establish promulgation of an order by a public servant lawfully empowered to promulgate and knowledge of the direction contained in the order promulgated before a person can be charged with the disobedience of such direction. No doubt the word 'promulgate' is not defined in the Code. Its ordinary meaning is 'to make known by public declaration, to publish or to proclaim.' 'Promulgation of an order' connotes publication of an order publicly and openly and it does not take in private information. No particular mode is prescribed for the promulgation of the order contemplated in Section 188, I.P.C. It may be by beat of drum or notification in the Gazette or by openly reading out of an order in public. So far as the parties to a proceeding are concerned pronouncement of the order in open court is sufficient promulgation. In the instant case there is no dispute with regard to the valid promulgation of the order in question. The order however, is one under Section 144, Cr. P. C. Section 144, Cr. P. C. itself provides that an order under the section shall be served in the manner provided by Section 134, Cr. P. C. and Section 134, Cr.P.C. provides that the order shall, if practicable, be served on the person against whom it is made in the manner herein provided for service of a summons. Section 69(1), Cr. P. C. provides that a summons shall be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Section 74(1), Cr. P. C. dealing with the proof of service of summons reads as follows:',
	(int) 9 => '<p>(1) When a summons issued by a Court is served outside the local limits of its jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in manner provided by Section 69 or Section 70 by the person to whom it was delivered or with whom it was left, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.',
	(int) 10 => '<p>(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.',
	(int) 11 => '<p>There is no affidavit of any one in this case showing service of the order on any of the petitioners. The prosecution rested its case, so far as the service of the notice on the petitioners is concerned, only on an endorsement on Ex. P-1. This endorsement purports to be by a police constable. It contains seven thumb impressions and a signature purporting to be of the eight petitioners. In the face of the categoric denial of the petitioners and in the absence of any affidavit of the police constable who made the endorsement on Ex. P-1 it would not be proper to conclude service of the order under Section 144, Cr. P. C. on any of the petitioners. The view of the trial court that there is a presumption of official acts having been done properly with regard to the service of summons is not correct, in so far as there is a specific provision under Section 74 of the Code of Criminal Procedure in regard to the mode in which service of summons should be proved. Where the law specifically provides as to how a particular fact has to be proved, it would not be proper for the court to accept proof of the same by reference to general or ordinary presumptions. Under the circumstances it has to be held that the prosecution did not satisfactorily establish service of the order on any of the petitioners. There is thus no proof of the petitioner's knowledge of the order. There cannot be a valid conviction for disobedience of an order, knowledge of which is not proved.',
	(int) 12 => '<p>7. Though it cannot be said that the order under Section 144(2), Cr. P. C. passed by the Taluk Magistrate, Cheepurupalli is incompetent, it has to be held that the prosecution did not establish knowledge of the order on the part of the petitioners. The convictions of the petitioners for disobeying the direction in an order of which they are ignorant are not proper and the convictions of the petitioners are, therefore, set aside. All the eight petitioners are acquitted of the offence under Section 183, I.P.C. and this revision petition is allowed. If the petitioners had already paid the fine amounts, the amounts shall be refunded to them.<p>',
	(int) 13 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 14
$i = (int) 13
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Subject	Criminal
Court	Andhra Pradesh High Court
Decided On	Mar-31-1975
Judge	Madhusudan Rao, J.
Reported in	1975CriLJ1784
Appellant	Kothakota Papayya and ors.
Respondent	State

Kothakota Papayya and ors. Vs. State - Court Judgment