Samir Kumar Maithan 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. .....h.p. v. pirthi chand, the sessions judge at the stage of taking cognizance of the offence discharged the accused on the ground of non-compliance of section 50 of the act. in revision, the high court confirmed the said order. the matter was then carried to the supreme court. having considered various contentions raised at the bar the court held that where after investigation is completed and charge-sheet is laid, the prosecution produces the statements of the witnesses recorded under section 161, cr.p.c. in support of the charge-sheet and at that stage it is not the function of the court to weigh the pros and cons of the prosecution case or to consider the necessity of strict compliance of the provisions which are considered mandatory, and its effect of non-compliance. it would be done after trial is concluded. the court has to prima facie consider from the averments in the charge-sheet and the statements of the witnesses on the record in support thereof whether court could take cognizance of the offence on that evidence and proceed further with the trial. having so held the court observed that the sessions judge was not justified in discharging the accused on the ground of.....

Judgment:

ORDER

R.K. Dash. J.

1. The petitioner, accused of an offence punishable Under section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act' is S.C. No. 331 of 1994 of the Court of the Sessions Judge, Koreput, Jeypore, has filed this petition Under section 482, Cr.P.C. invoking the inherent power of the Court to quash the aforesaid proceeding.

2. The case of the petitioner in a nutshell is that there was infraction of the provisions of Sections 42 and 50 of the Act inasmuch as the Assistant Sub-Inspector of Police, Govindapali, who allegedly seized 15 KGs. of Ganja from the possession of the petitioner and the co-accused was not authorised under law to seize the same and that before search was made, the petitioner was not asked as to if he was required to be searched before a Gazetted Officer or a Magistrate. The above two provisions being mandatory, non-compliance thereof would vitiate the trial. It is, therefore, urged that when the trial of the case would ultimately and in acquittal, it would be of no use to continue the proceeding.

3. Upon hearing the counsel for the petitioner and the learned Advocate General for the State, for the reasons to follow I would hold that the contention of the petitioner does not merit any consideration. It has been authoritatively hold by the Apex Court in a catena of decisions that the power to quash criminal proceeding in exercise of inherent power Under section 482, Cr.P.C. should be exercised very sparingly and with circumspection and that too in rarest of rare cases. In almost a similar case of this nature reported in (1996) 2 SCC 37 : 1996 Cri LJ 1354, State of H.P. v. Pirthi Chand, the Sessions Judge at the stage of taking cognizance of the offence discharged the accused on the ground of non-compliance of Section 50 of the Act. In revision, the High Court confirmed the said order. The matter was then carried to the Supreme Court. Having considered various contentions raised at the Bar the Court held that where after investigation is completed and charge-sheet is laid, the prosecution produces the statements of the witnesses recorded Under section 161, Cr.P.C. in support of the charge-sheet and at that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider the necessity of strict compliance of the provisions which are considered mandatory, and its effect of non-compliance. It would be done after trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of the witnesses on the record in support thereof whether Court could take cognizance of the offence on that evidence and proceed further with the trial. Having so held the Court observed that the Sessions Judge was not justified in discharging the accused on the ground of non-compliance of mandatory requirements of Section 50. Applying the aforesaid test to the present case, i would hold that non-compliance of the provisions of Sections 42 and 50 of the Act, if any; cannot be considered at this stage and the proceeding quashed, in exercise of inherent power Under section 482, Cr.P.C.

In the result, the Misc. Case fails and the same is dismissed.