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2009 Supreme(AP) 909
HIGH COURT OF ANDHRA PRADESH
B. CHANDRA KUMAR, J.
POTUNURU NARAYANAMMA
VS.
STATE OF A. P.
Criminal Petition No. 10630 of 2009
Decided On : DECEMBER 17, 2009
C.PRAVEEN KUMAR,
Headnote:a) CONSTITUTION OF INDIA, Article 342 - Constitution (Scheduled Tribes) Order, 1950 :- Respondent belongs to the community of “Banjara”, which is in the list of other backward castes in the State of her birth, Maharasthra – Respondent marrying “Lambada” in Andhra Pradesh and migrating to Andhra Pradesh – She was accepted by the members of the husband’s community – However for contesting to the post of Member of Legislative Assembly, which is reserved for scheduled tribe – She is not eligible to contest for the seat as her caste has to be considered with reference to her birth, but not that of the marriage and because “ Banjara” is not included in the scheduled tribe as per the Presidential order which is decided in consultation with the Governor of each State. (Para 54)
b) CONSTITUTION OF INDIA, Articles 332, 342 and 365 (25) Representation of the People Act, 1951, Section 100 (l)(a) - Constitution (Scheduled Tribes) Order, 1950 - Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002 (Act 10 of 2003) which came into effect on 7-1-2003 :- Amendment Act, Act, 2002, which includes the word “Banjara “ included in the schedule w.e.f.07-01-2003 will not be applicable as it has its application to the permanent residents of the Staes since the Act has to be read in conjunction with the Presidential order, 1950. Contention of the Respondent she be treated as permanent resident of the State rejected since her ancestors are not permanent residents of the State. . (Para 61)
c) REPRESENTATION OF THE PEOPLE ACT, 1951, Section 83 - Civil Procedure Code, 1908, Order 6 Rule 15 – Where the declaration of the returned candidate as elected is declared void not because she secured lesser votes than the election petitioner or because she obtained the votes due to corrupt practice, there is no provision to grant the relief of the election petition to declare him as elected. (Para 63)
d) CONSTITUTION OF INDIA, Article 342 (1) - Constitution (Scheduled Tribes) Order, 1950 – Once the Presidents enlist the castes under the Scheduled Tribe for a particular respect after consultation with the Governor of that particular state it is not open for court to add or subtract to the list. (Para 10)
e) REPRESENTATION OF THE PEOPLE ACT, 1951, Sections 81, 83, 100 and 101 :- The grounds on which the election of a returned can be challenged shall be specific, precise and clear and shall be in the format provided under the Act. (Para 13)
f) REPRESENTATION OF THE PEOPLE ACT, 1951, Sections 5, 8 and 100 (1) (a):- Distinction between the phrases not qualified and disqualified is explained. While Section 5 prescribes qualification Section 8 provides disqualification. In order to declare the election of a candidate as void, the grounds mentioned in Section 100 shall be established. (Para 15)
g) REPRESENTATION OF THE PEOPLE ACT, 1951, Section 83 - Scheduled Tribes Orders (Amendment) Act, 1976 Scheduled Castes and Scheduled Tribes. Orders (Amendment) Act, 2002 (Act 10 of 2003) :- Where the election petitioner clearly states that returned candidate belong to “Banjara “ community which belongs to the other Backward in Maharasthra in her place of birth and she was brought to Adilabad only after marriage is sufficient pleadings as per the Act. Non- mention of the Amendment Act is not fatal because it is a question of construction which has to be done by the court. (Para 29)
h) REPRESENTATION OF THE PEOPLE ACT, 1951, Section 83 - Civil Procedure Code, 1908, Order 6 Rule 15 – Contention of the respondent that the election petition that the election petition is not properly verified as required under Section 89 of the Act is rejected in view of the affidavit is annexed with the petition and minor omissions in the verification is not fatal. (Para 33)
i) CIVIL PROCEDURE CODE, 1908, Order 19 Rule 3 and Order 18 Rule 4 - A.P. Civil Rules of Practice and Circular Orders, 1980, Rules 38 and 39 – The contention of the respondent that the deposition of the election petitioner which was in the form of affidavit is not compliance with Order 39 is to be rejected it was attested by an advocate other than the counsel for the election petitioner. (Para 37)
( 2 ) THE petitioner herein is the accused no. 2 in P. R. C. No. 7 of 2009. The defacto complainant in her complaint described the petitioner as follows:
"potnuri Narayanamma, son of Samba murthy, Hindu, aged 35 years, Teacher, resident of Gajapathinagaram. "
( 3 ) THE petitioner filed Crl. M. P. No. 151 of 2009 seeking bail. She has mentioned her particulars as follows: potnooru Narayanamma W/o Samba murthy, 36 years, Hindu, house wife r/o Gajapathi Nagaram. The learned Special judge granted bail to the petitioner and other accused on condition of the petitioners executing bonds for Rs. 10,000/- (Rupees ten thousand only) each with two sureties for like sum to the satisfaction of the Judicial magistrate of I Class, Gajapathinagaram.
( 4 ) THE petitioner filed a memo before the learned Special Judge stating that she has mentioned her occupation as House wife, whereas the complainant has wrongly shown her occupation as teacher. It is also stated that in view of this discrepancy, the learned judicial Magistrate of First Class, gajapathinagaram has not accepted sureties and not issued the release order. In the said memo, a direction was sought to the magistrate to release the petitioner irrespective of the status, age and occupation of the petitioner. The said memo was returned with endorsement to the effect that as to how the memo can be entertained to meet the such exigency since the order passed thereon in bail application was already communicated to all the concerned. Then the petitioner filed a petition under section 482cr. P. C. before the Special Judge seeking to modify the order passed in crl. M. P. No. 151 of 2009 and to correct the column of the occupation of the petitioner as teacher instead of house wife. The said order was dismissed with endorsement as follows: (1) Correct provision of law to be noted. (2) As seen from the petition and order dated 9-12-2009, the occupation of the petitioner A-2 is correct. Hence it is to be clarified as to why this petition is filed in this Court?
( 5 ) THIS present petition has been filed seeking a direction to the Judicial Magistrate of 1st Class, Gajapathinagaram to accept the sureties for release of the petitioner on bail irrespective of status mentioned in the cause title in Crl. M. P. No. 151 of 2009 on the file of the Special Judge.
( 6 ) THE only point that falls for consideration is: whether such a direction is justified in the circumstances of the case?
( 7 ) NO doubt, in the complaint, occupation of the petitioner is shown as teacher and she has described as son of Samba Murthy.
( 8 ) THE very fact that the petitioner is shown as son of Samba Murthy shows that her description is incorrectly mentioned. Admittedly, she is a woman. Therefore, referring her as son of Samba Murthy is incorrect.
( 9 ) WHENEVER in a complaint or in the charge sheet if the particulars of the accused are not correctly mentioned by the Defacto complaint or by the police, it is the petitioner-accused who has to mention the correct particulars in the petition filed by him. Merely because the description is not tallying, the learned Magistrate appears to be not justified in rejecting to accept the sureties furnished by the petitioner. For example in this case the defacto complainant has shown the petitioner as son of Samba Murthy? whereas she is the wife of Samba Murthy. Whether petitioner also should mention her particulars as son of Samba Murthy. It would be absurd to say-that
