Prafulla Kumar Nayak Vs. State of Orissa - Court Judgment

Excerpt:

- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. .....sahoo v. state, (1993) 6 ocr 518, bijaya v. state, criminal misc. case no. 1565 of 1994(disposed of on 5-9-1994). an order of bail either under section 437 or section 438 or section 439, cr pc remains operative unless it is cancelled under appropriate provisions. merely because cognizance has been taken of an offence which is exclusively triable by court of session or the punishment provided for is higher than the offence relating to which there was earlier accusation and on the basis of which an order of bail was granted, the order of bail does not automatically lapse. as observed by the apex court in the free legal aid committee's case 'supra) there is no necessity for re-arresting the accused merely because a case is committed to the court of session. the situation can be avoided by resorting to sub-section (3) of section 441 cr pc under which bail can be granted to an accused so as to bind him to appear before the court of session in which event on committal he would not be required to be re-arrested and be brought before the court of session. it is also clear from clause (b) of section 209, cr pc that a magistrate has discretion to release an accused on bail during and.....

Judgment:

ORDER

A. Pasayat, J.

1. Heard learned counsel for petitioner and learned counsel for State.

2. Petitioner was granted bail in G. R Case No. 146 of 1993 by learned SDJM, Karanjia. Subsequent to the grant of bail, charge-sheet was submitted indicating commission of offence punishable under Section 395, IPC. Learned SDJM was of the view that bail was granted on the premises that the petitioner and others had committed offence punishable under Section 384, !PC. In view of the submission of the charge-sheet under Section 395, IPC, bail bonds furnished by the petitioner were to be cancelled. Accordingly, he directed cancellation of bail and issued non-bailable warrant against the petitioner and others. Learned SDJM also took cognizance of offence punishable under Section 395, IPC. According to learned counsel for the petitioner, the order dated 5-3-1994 is indefensible because (a) an order of bail remains in operation unless it is cancelled under appropriate provisions, and (b) ingredients necessary to constitute offence punishable under Section 395, IPC are absent. Learned counsel for the State, on the other hand, supported the order.

3. So far as the first aspect is concerned, the position has been amply elaborated by the Apex Court in Free Legal Aid Committee, Jamshedpur v. State of Bihar, AIR 1982 SC 1463 and by this Court in Sankar Jena v. State of Orissa, (1993) 6 OCR 418, Krushna Chandra Sahoo v. State, (1993) 6 OCR 518, Bijaya v. State, Criminal Misc. Case No. 1565 of 1994(disposed of on 5-9-1994). An order of bail either under Section 437 or Section 438 or Section 439, Cr PC remains operative unless it is cancelled under appropriate provisions. Merely because cognizance has been taken of an offence which is exclusively triable by Court of Session or the punishment provided for is higher than the offence relating to which there was earlier accusation and on the basis of which an order of bail was granted, the order of bail does not automatically lapse. As observed by the Apex Court in the Free Legal Aid Committee's case 'supra) there is no necessity for re-arresting the accused merely because a case is committed to the Court of Session. The situation can be avoided by resorting to Sub-section (3) of Section 441 Cr PC under which bail can be granted to an accused so as to bind him to appear before the Court of Session in which event on committal he would not be required to be re-arrested and be brought before the Court of Session. It is also clear from Clause (b) of Section 209, Cr PC that a Magistrate has discretion to release an accused on bail during and until completion of trial even in cases where the offence is triable by the Court of Session. The direction of the learned SDJM cancelling the bail bonds cannot be maintained and is accordingly vacated. It is made clear that 1 have not expressed any opinion as to the desirability of cancellation of bail.

4. So far as the question whether ingredients necessary to constitute offence punishable under Section 395, IPC, are present is concerned, this aspect can be highlighted by the petitioner before the learned SDJM. If such a course is adopted, it shall be dealt with keeping in view the principles indicated by the Apex Court in the case of K.M. Mathew v. State of Kerala and Anr., (1992) 5 OCR 66.

5. The Criminal Misc. Case is accordingly disposed of.