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2009 DIGILAW 481 (KER)

Sebastian v. Judicial 1st Class Magistrate Court

2009-06-15

V.K.MOHANAN

body2009
Judgment :- V.K. Mohanan, J. Who is the authority - the Presiding Officer or the Advocate to cancel the stamp affixed on a petition filed in a criminal court? This is the simple question raised in this Writ Petition. 2. The petitioner, who is an Advocate practicing in the courts at Nedumkandam and Kattappana, has preferred this Writ Petition under Arts. 226 and 227 of the Constitution of India in a representative capacity on behalf of the Advocate practising in the above courts and also for himself. The main prayer in this Writ Petition is for a direction to the respondent, the Judicial First Class Magistrate Court, Nedumkandam and also to all concerned, regarding the manner in which the court fee stamps affixed in documents produced in courts should be cancelled. The other prayer in the Writ Petition is to issue a writ of certiorari or other appropriate writ, order or direction to quash Ext.P2 order, rejecting the application, filed to exempt the accused from appearing in the court and to appear through his counsel, namely the petitioner in C.C. No.27 of 1996 before the Judicial First Class Magistrate Court, Nedumkandam, stating that the stamp is seen cancel led by putting initials and date `by somebody else' which is contrary to R.29(1) of the Criminal Rules of Practice, Kerala, 1982 (for short `the Rules'). 3. As per the averments in the above Writ Petition, the petitioner has appeared for the accused in C.C. No.27 of 1996 on the file of the Judicial First Class Magistrate Court, Nedumkandam, the respondent herein. The said case stood posted on 26.11.1998 as a formal posting on which date the accused could not appear before that court due to illness. Hence, an application was filed to condone the absence of the accused. A copy of the said petition is produced as Ext.P1. According to the petitioner, on Ext.P1 application, requisite stamp was affixed and the same was duly cancelled as provided under the Kerala Courts Fees and Suits Valuation Act, 1959 (hereinafter referred to as `the Act' only). The said petition was rejected as perExt.P2 on the ground mentioned earlier. According to the petitioner, the reason stated that "Stamps seed cancelled by putting initials and date by somebody else. This is contrary to R. 29(1) of Kerala Criminal Rules of Practice" is against the Act. The said petition was rejected as perExt.P2 on the ground mentioned earlier. According to the petitioner, the reason stated that "Stamps seed cancelled by putting initials and date by somebody else. This is contrary to R. 29(1) of Kerala Criminal Rules of Practice" is against the Act. According to the averments in the above Writ Petition, the respondent was consistently taking a stand that court fee stamp affixed in the petition filed before both the courts shall not be cancelled by the concerned Advocate in view of R. 29(1) of the Rules and the same can be done only by the Presiding Officer or Officer of the court. Thus, the above stand, according to the petitioner, is against the provisions relating to the cancellation of stamps contained in the above Act. Thus, the sum and substance of the contentions and averments raised in the Writ Petition is that the provisions relating to the cancellation of stamps contained in the Act and the Rules are in conflict. Therefore, the petitioner has approached this Court with the prayers mentioned above. 4. I have heard Mr.Grashious Kuriakose, learned counsel appearing for the petitioner and Mr.T.K. Vipin Das, learned Government Pleader appearing for the respondent as well as the State. 5. The learned counsel for the petitioner invited my attention to S. 78A(1) and (2) of the Act which runs as follows:- "78A. Writing name or initials on or across the stamp.-(1) Whoever affixes any adhesive stamp to any document requiring stamp under this Act shall at the time of affixing such stamp write on or across the stamp his name or initials or the name or initials of his firm with the true date of his so writing so that it cannot be used again. (2) Any document bearing an adhesive stamp which does not bear the name or initials of the person who affixes the stamp or of his firm, as required by sub-section (1), so that it cannot be used again, shall, so far as such stamp is concerned, be deemed to be unstamped." According to the learned counsel, in view of the above provisions contained in the Act, it is mandatory on the part of the person, who affixes the adhesive stamp to any document, to write on or across the stamp his name or initials or the name and initials of his firm with the true date of his so writing. By inviting my attention to sub-s.(2) of S.78A which is quoted above, learned counsel appearing for the petitioner submits that if such an endorsement is not made on the stamp affixed, the document contemplated therein will be deemed as unstamped which will be a ground for rejecting the petition. Therefore, according to the learned counsel, it was incumbent on the petitioner to put his name or initial and date on the stamp affixed by him on Ext.P 1 petition and therefore, the reason stated in Ext.P2 is absolutely illegal as the same is against the provisions contained in S.78A of the Act. 6. Learned counsel for the petitioner brought to my notice R. 29 of the Rules, which is quoted below: - "29. Cancellation of stamps:- (1) The Presiding Officer or the Chief Ministerial Officer of the Court, shall, on receiving any documents which is stamped, cancel the same with his initials and date and shall also note on the top of the document the total value of the stamp the document bears. (2) All court-fee stamps whether impressed or in the form of labels in every document received by the court shall be cancelled by punching out the insignia of the State in the stamps in such a manner as to leave the amount designated on the stamp untouched." On a reading of R. 29, it can be seen that the authority to cancel the stamp is vested with the Presiding Officer or the Chief Ministerial Officer of the Court where the document is produced. R.29 also prescribes the mode by which the stamp has to be cancelled. R.29 also prescribes the mode by which the stamp has to be cancelled. Thus, according to the learned counsel, as per R. 29 of the Rules, the stamp has to be cancelled by the Presiding Officer or the Chief Ministerial Officer of the Court. But, the learned counsel pointed out that S.78A of the Act is mandatory in nature which requires that the person, affixing the stamp, shall make some endorsement as contemplated therein which is equal to the endorsement contemplated in R.29(1) of the Rules for cancellation of the stamp, which is mandatory to the Presiding Officer or the Chief Ministerial Officer of the Court. Hence, according to the learned counsel, the above two provisions of the Act as well as the Rules are in direct conflict and therefore, a declaration is absolutely necessary. 7. On the other hand, the learned Government Pleader strenuously argued that as far as the criminal court is concerned, the rules prescribed as a guidance will have to prevail and therefore, the authority to cancel the stamp produced before the court is exclusively vested with the authority of the Presiding Officer or the Officer of the court concerned and there is no conflict or ambiguity between the above two provisions and no interference of this Court is required. 8. I have carefully considered the rival pleadings and contentions and also the arguments advanced by both the counsel for the petitioner as well as the Government Pleader. I have also carefully perused the various provisions contained in the Act as well as the Rules. 9. Before analysing the provisions of S. 78A of the Act as well as R. 29 of the Rules, it is worthwhile to read S. 80 of the Act. which is quoted below for convenience:- "80. Cancellation of stamp.- No document requiring a stamp under this Act shall be filed or acted upon in any proceeding in any Court or office until the stamp has been cancelled. Such officer as the Court or the head of the office may, from time to time, appoint . which is quoted below for convenience:- "80. Cancellation of stamp.- No document requiring a stamp under this Act shall be filed or acted upon in any proceeding in any Court or office until the stamp has been cancelled. Such officer as the Court or the head of the office may, from time to time, appoint . shall, on receiving any such document forthwith effect such cancellation by punching out the figure head so as to leave the amount designated on the stamp untouched, and the part removed by punching shall be burnt or otherwise destroyed: Provided that in the case of an adhesive stamp, no such cancellation shall have effect unless it bears the name or initials of the person who affixes the stamp or of his firm, as required by sub-s.(1) of S.78A." As per S.80 of the Act, the authority to cancel the stamp, which bears the document produced before the court, is vested with the court or the officer of such court. As per the proviso to S. 80, the cancellation of the stamp on exercising such power vested on the court or the officer has no effect unless the same bears the name or initials of the person or his firm who affixed the stamp as required by sub-s.(1) of S.78A of the Act. It is also relevant to note that the mode of cancellation contemplated by S. 80 is by way of punching out the figure head so as to leave the amount designated on the stamp untouched. In this juncture, it is relevant to note that for the purpose of cancellation of stamp under S. 80 of the Act, the only method prescribed is by way of punching and S. 80 does not mandate that the Presiding Officer or the officer of the court endorses his initial and date on such stamp for cancellation of the same. 10. It is also relevant to note that both under S. 80 of the Act and R.29 of the Rules, the cancellation of the stamp will be completed only on punching out the figure head as mentioned in S. 80 or insignia of the State contained in the stamp. 11. It is further relevant to note that the extreme object behind the provisions such as Ss. 11. It is further relevant to note that the extreme object behind the provisions such as Ss. 78A and 80 of the Act as well as R.29 of the Rules is that the requisite fee is paid and the adhesive stamp used towards the payment of such court fee shall not be misused again. So, the legislative authority or the rule making authority, incorporated the above provisions in the `Act' and `Rules' to achieve the above object. 12. The Kerala Court-Fees and Suits Valuation Act, 1959 (Act 10 of 1960) is enacted by the State Legislature as it is necessary and expedient to consolidate the laws relating to Kerala Court Fees and Suits Valuation in the State of Kerala whereas Criminal Rules of Practice, 1982 is a rule for the guidance of all criminal courts in the State of Kerala framed by the High Court of Kerala in exercise of its delegated powers under Art. 226 of the Constitution of India and S. 477 of the Code of Criminal Procedure, 1973. On a reading of R. 29 of the Rules and on comparison of S. 78A and S. 80 of the Act, it can be seen that R. 29(2) is not similarly worded as that of those sections in the Act though the object behind the above provisions is one and the same. 13. In the decision reported in Ouseph Martha v. State of Kerala (1960 KLT 181), this Court had held that while interpreting the two statutes on the same subject, the construction favourable to both must be given. The `Rule' has also the status of an Act. In another decision in Mary v. The Regional Deputy Director of Public Instructions & Ors. (ILR 1974 (2) Ker. 274), this Court had held that it is a fundamental principle of interpretation of statutes inclusive of subordinate legislation that the attempt of the court should be, as far as possible to harmonise the different provisions contained in the statute or in the rules so long as it is possible to achieve the same without doing violence to the language used by the legislature or the rule-making authority. It was further held that a construction which leads to a direct conflict between different provisions should, as far as possible, be avoided. It was further held that a construction which leads to a direct conflict between different provisions should, as far as possible, be avoided. Similarly, a Full Bench of this Court in the decision reported in Narayanan Asari Thankappan Asari v. Ammukutty Bai (1973 KLT 443(F.B.)) had held that any construction should be avoided, if possible, as contrary to the intent of the law makers, that produces any effect at variance with the commonly recognized concepts of what is right, just and ethical. It was also held that any statute which requires construction should be construed to be in harmony with the existing law. Therefore, according to me, the object behind the above provisions is the same though in different statutes, an interpretation shall be given in favour of both the statutes so as to give effect and advance the object behind those provisions. 14. Now let me examine the facts and circumstances involved in the present case in the light of the above provisions and authorities. On a close reading of S. 78A of the Act, it can be seen that the above provision prescribes certain procedures to be followed by the person who affixes the stamp to any document and the said provision does not contemplate or refer to the proceedings in a court of law, but we cannot ignore the consequence on failure in following the procedure by a person who affixes the stamp in the light of the provisions contained in S. 78A of the Act. As per the proviso to S.80, though an adhesive stamp was cancelled by the officer of the court or the head of the office, the same shall not be effected unless the stamp bears the name or initial of the person who affixes the stamp as required by sub-s.( I) of S.78A of the Act. So on a reading of S.78A.(1)and (2) along with proviso to S.80, it can be seen that as per the Act, a duty is cast upon the person, who affixes the stamp on a document to be produced before the court, to mate the endorsement in the said stamp as contemplated by S. 78A (1) of the Act. So on a reading of S.78A.(1)and (2) along with proviso to S.80, it can be seen that as per the Act, a duty is cast upon the person, who affixes the stamp on a document to be produced before the court, to mate the endorsement in the said stamp as contemplated by S. 78A (1) of the Act. Unless there is such endorsement, in view of S. 78A(2) and the proviso to S. 80 of the Act, even if such a stamp is cancelled by the Presiding Officer or the Officer of the court, it may not have any effect and the documents so produced will be deemed as unstamped. 15. As per R.29(1) of the Rules, under the caption "Cancellation of stamps", it is mandatory that the stamp on the document shall be cancelled by the Presiding Officer or the Chief Ministerial Officer with his initials and date and also to note on the top of the document the total value of the stamp. So when R. 29 of the Rules and Ss. 78A and 80 of the Act are read together, it is crystal clear that the said provisions are designed to see whether the requisite court fee is paid for the document produced in the court aid the cancellation of the said stamp is valid and the same was on satisfaction of the Presiding Officer or the Officer of the court regarding the condition laid down by S.80 read with S.78A of the Act and R. 29(1) and (2) of the Rules. The ultimate object is to prevent the misuse of such used stamps. In this juncture, it is relevant to note that all those procedures and safeguards are made with respect to adhesive stamp and those provisions, especially S. 80 and R. 29, are not referring to impressed stamp, as impressed stamp paper once used cannot be used again. 16. In the present case, from Ext.P2, it appears that the learned Magistrate has rejected Ext.P1 petition on the ground that the stamp was cancelled by "somebody". No details are stated in Ext.P2 as to how the learned Magistrate came into such a conclusion. It is not discernible whether the stamp was cancelled by somebody other than the petitioner or the Advocate appearing for the accused in that case or his recognised clerk. No details are stated in Ext.P2 as to how the learned Magistrate came into such a conclusion. It is not discernible whether the stamp was cancelled by somebody other than the petitioner or the Advocate appearing for the accused in that case or his recognised clerk. If the stamp affixed on Ext.P1 contained the name or initial of the petitioner, it cannot be said that the petitioner has not made the requisite endorsement on the stamp affixed on Ext.P 1 petition. If those details are contained on the stamp, the Presiding Officer can also endorse his initials with date towards the cancellation of the said stamp as required by R. 29(1) of the Rules. On a conjoint reading of S. 80 of the Act and R.29(1) of the Rules, it can be seen that the process of cancellation of the stamp will be completed only on punching of the stamp. So by punching, any possibility of misusing the same stamp can be prevented. Thus, I am of the view that in the absence of any details as to why the learned Magistrate stated that somebody had cancelled the stamp, it cannot be said that the ground mentioned in Ext. P2 is illegal or irrelevant and unwarranted because in view of S. 78A and 80 of the Act, only the person who affixes the stamp on the document can make those endorsements. If those endorsements are made by some person other than the petitioner. Advocate or his recognised clerk, the approach of the learned Magistrate is absolutely correct. On the other hand, if the endorsement is made by the petitioner himself, the order of the Magistrate is illegal and not in accordance with the statutory requirement. However, no further enquiry is required in this regard. since those issues became infructuous. 17. But, in the Writ Petition, the second prayer of the petitioner is relevant because of public interest and due to the involvement of legal questions. In the light of the discussion with respect to the statutory provisions mentioned above and in the light of the authorities stated above, I am of the view that though R.29 is not worded exactly in terms of S. 78A of the Act, it cannot be said that there is any conflict among the two provisions especially in the light of the provisions contained in S. 80 and on construing the above provisions. harmoniously, especially considering the objects behind the above provisions, I am of the view that absolutely there is no conflict among the above provisions. 18. No doubt from a reading of S.78A and 80 of the Act and R.29 of the Rules, it is crystal clear that the authority to cancel the stamp is vested with the court. On a harmonious interpretation of the provisions in S.78A of the Act and R. 29(1) of the Rules, especially in the light of S.80 of the Act and sub-r.(2) of R..29, it is further dear that a duty is cast upon the person, who affixes the stamp on a petition to be produced before the court, to write on or across the stamp his name or initials or the name or initials of his firm with the true date and such endorsement will not amount to cancellation of the stamp. But, while making such endorsement, such person should take care to see that the same is done in terms of S. 78A of the Act and after leaving sufficient space on the stamp to endorse the details by the court as required under R.29 (1) of the Rules. The affixed stamp can be said as cancelled when the initial and date of the Presiding Officer or the Officer of the court are endorsed and finally the stamp is punched. It is made clear that the Presiding Officer shall not reject the petition for the reason that the Advocate or petitioner therein has endorsed the details as required by S. 78A of the Act and the said Officer can reject the petition only if he is satisfied that the said endorsement is not made by the Advocate or his recognised clerk or the petitioner therein. 19. It is relevant to note that S. 78A does not deal with the proceedings before the court. When a court fee stamp is affixed on a petition to be filed before a statutory authority or quasi judicial authority, often the party may not appear before him at the time of filing the petition or considering the petition. In such case, the compliance in terms of S. 78A is absolutely necessary whereas in a court, especially the court like the respondent, it is a direct transaction and the Presiding Officer can himself be satisfied with the genuineness and bonafideness of the stamp used. In such case, the compliance in terms of S. 78A is absolutely necessary whereas in a court, especially the court like the respondent, it is a direct transaction and the Presiding Officer can himself be satisfied with the genuineness and bonafideness of the stamp used. Therefore, if the Presiding Officer or the officer of the court is satisfied that the required stamp is affixed by the petitioner or his Advocate or his recognised clerk, even in the absence of their initial or date, the same can be accepted and acted upon and he can cancel the same for the purpose and as required under R. 29 of the Rules. The Bench and Bar are equally responsible and a duty is cast upon them for the effective administration of justice and there is no role for an `ego' in between them and the harmony among the two is inevitable for dispensation of justice and to make it meaningful. 20. Thus, summarising the above discussion, I hold that the authority to cancel the stamp affixed on the petition filed before the Criminal Court is vested with the Presiding Officer of that court or the officer authorised and such Presiding Officer or the officer so authorised, can cancel the stamp, if he is satisfied that the required stamp is affixed by the petitioner therein or his Advocate or his recognised clerk even in the absence of their initial or date and the Presiding Officer or the officer so authorised shall not reject such petition for the reason that the petitioner or his Advocate or his recognised clerk has endorsed the details on the stamp as required under S. 80 of the Act. In the light of the above facts and circumstances and the discussion made, no order is required with respect toExt.P2. Hence, the Writ Petition is closed with the above finding and observation.