Surendra Kumar Patjoshi and ors. 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. .....be described as an inquiry within an inquiry as has been said in some cases. some inquiry has to be made before the bond can be ordered. we, therefore, approve of those cases in which it has been laid down that some inquiry should be made before action is taken to ask for an interim bond or placing the person in custody in default......'on a perusal of the record, it is seen that in the present case no inquiry was made by the magistrate and the magistrate made no attempt in a legal way to put the allegations to test for finding out whether they are the facts. hence the impugned order passed by the learned magistrate is without jurisdiction.3. in the result, i hereby quash the impugned order directing the petitioners to executs interim bonds and accordingly allow the revision.

Judgment:

ORDER

V. Gopalaswamy, J.

1. This revision is preferred against the order dated 16-12-1987 passed by the S. D.M., Dharamgarh, directing the delinquents petitioners in Criminal Misc. Case No. 281 of 1987, a proceeding Under Section 107 (sic) Cr. P.C. to execute interim bonds for keeping peace.

2. Under Section 116(3), Cr. P.C. the Magistrate may direct the delinquent to execute interim bond only after the commencement of the inquiry if the other requirements of that sub-sec. are fulfilled. The learned counsel for the petitioners, Mr. Mohanty, submits that the impugned order passed by the Magistrate is without jurisdiction in that by the date of the passing of the impugned order the inquiry has not yet commenced. In this context he relied on Sona Khan v. State, (1980) 50 Cut LT 245 (1981 Cri LJ 39) (FB). In that decision the following observations of the Supreme Court in Madhu Limaya v. Sub-divisional Magistrate, Monghyr, AIR 1971 SC2486: (1971 Cri LJ 1720), were referred to and relied on (para 43):

'.....Therefore, as the liberty of a person is involved, and that person is being proceeded against on information and suspicion, it is necessary to put a strict construction upon the powers of Magistrate....... It cannot be described as an inquiry within an inquiry as has been said in some cases. Some inquiry has to be made before the bond can be ordered. We, therefore, approve of those cases in which it has been laid down that some inquiry should be made before action is taken to ask for an interim bond or placing the person in custody in default......'

On a perusal of the record, it is seen that in the present case no inquiry was made by the Magistrate and the Magistrate made no attempt in a legal way to put the allegations to test for finding out whether they are the facts. Hence the impugned order passed by the learned Magistrate is without jurisdiction.

3. In the result, I hereby quash the impugned order directing the petitioners to executs interim bonds and accordingly allow the revision.