SEBASTIAN Vs. JUDICIAL FIRST CLASS MAGISTRATE COURT

JUDGEMENT

(1.) 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 practising in the courts at Nedumkandom 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 cancelled 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 per Ext. P2 on the ground mentioned earlier. According to the petitioner, the reason stated that "stamps seen 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.