Kalu and ors. Vs. State

Kalu and ors. vs State

Type Court Judgment Court Rajasthan Decided Jan 22, 1951

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Citation: sooperkanoon.com/750793
Court: Rajasthan High Court
Judge: Ranawat, J.
Decided On: Jan 22, 1951
Case Number: Criminal Revn. Nos. 135 and 404 of 1950
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

- INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either...

Key legal issue: Criminal
Acts & sections: Code of Criminal Procedure (CrPC) , 1898 - Sections 9, 17 and 497

Parties & Advocates

Appellant / Petitioner

Kalu and ors.

Advocate Daulatmal Bhandari, Adv.

Respondent

State

Advocate Harilal Parikh, Asst. Govt. Adv.

Legal References

Acts: Code of Criminal Procedure (CrPC) , 1898 - Sections 9, 17 and 497
Cases Referred: Ba Maung v. Emperor
Reported In: AIR1954Raj22

Excerpt

.....control test is one of the important tests, but is not to be taken as the sole test. it is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. the other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. a full time worker usually works in a week for 40 hours or more depending on the award or agreement. if a person falls under the definition of workman under section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the i.d. act, and he will be entitled to all the benefits under the said act. a perusal of section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the i.d. act. however, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. the control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person..........9, cr. p. c. has no bearing on their point. wherever it has been intended that an' additional sessions judge or an assistant sessions judge may exercise the powers of the sessions judge a special provision has been made in the criminal procedure code. in section 193, 409 and 438 an additional sessions judge has been given powers to try a case or to hear an appeal and a revision application in such cases as are specified therein. under section 497 the power to cancel bail has been invested in the high court or the court of session. no mention has been made regarding the exercise of those powers by an additional sessions judge or an assistant sessions judge. obviously therefore it was not contemplated by the code that the powers relating to the cancellation of bail are to be exercised by an additional sessions judge, except in cases where specific powers in this behalf are conferred on him by the sessions judge.it is said that the sessions judge, jaipur, made an order under section 17, cr. p. c. by which he authorised the additional sessions judge to hear and dispose of bail applications which may be transferred to his court by the sessions judge or which may arise out of criminal original cases pending before him. it is argued on behalf of the government that the order of the additional sessions judge should be deemed to be in the exercise of the powers conferred by the sessions judge upon him but looking to the language of the order of the sessions judge this contention does not appear to be good. moreover, under section 17 the jsessions judge can only confer powers on an additional sessions judge when he is himself unavoidably absent or is incapable of acting. the order made by the sessions judge, jaipur, in this case on 11-11-1950 was a general order passed with a view to proper and efficient disposal of the criminal cases. it cannot, therefore, be said that the aforesaid order was one under section 17, cr. p. c. the order of the additional sessions judge.....

Full Judgment

ORDER

Ranawat, J.

1. The Sub-Divisional Magistrate, Shahpura, Granted bail to Kaluram and 11 others on 16-2-1950 in a case that was pending in his Court under Section 302, I. P. C. A revision was filed against that order in the Court of the Sessions Judge, Jaipur, who transferred the case to the Additional Sessions Judge. The Additional Sessions Judge on the prayer of the Public Prosecutor that the revision application may be treated as an application under Section 497(5), Cr. P. C. made an order cancelling the bail of the accused. The accused have filed this revision application against the order of the Additional Sessions Judge, Jaipur, dated 23-11-1950. A separate application under S. 498, Cr. P. C. has also been filed on behalf of the accused in this Court. Both these cases are being disposed of together.

2. It has been argued on behalf of the accused that the Additional Sessions Judge had no authority to make an order under Section 497(5), Cr. P. C. for the cancellation of the bail of the accused. 'Ba Maung v. Emperor', AIR 1930 Rang 335 (A), has been cited in support of this argument. The Government Advocate has argued that under Section 9, Cr. P. C. the Additional Sessions Judge can exercise all the powers of the Sessions Judge.

3. It may be observed that Section 9, Cr. P. C. has no bearing on their point. Wherever it has been intended that an' Additional Sessions Judge or an Assistant Sessions Judge may exercise the powers of the Sessions Judge a special provision has been made in the Criminal Procedure Code. In Section 193, 409 and 438 an Additional Sessions Judge has been given powers to try a case or to hear an appeal and a revision application in such cases as are specified therein. Under Section 497 the power to cancel bail has been invested in the High Court or the Court of Session. No mention has been made regarding the exercise of those powers by an Additional Sessions Judge or an Assistant Sessions Judge. Obviously therefore it was not contemplated by the Code that the powers relating to the cancellation of bail are to be exercised by an Additional Sessions Judge, except in cases where specific powers in this behalf are conferred on him by the Sessions Judge.

It is said that the Sessions Judge, Jaipur, made an order under Section 17, Cr. P. C. by which he authorised the Additional Sessions Judge to hear and dispose of bail applications which may be transferred to his Court by the Sessions Judge or which may arise out of criminal original cases pending before him. It is argued on behalf of the Government that the order of the Additional Sessions Judge should be deemed to be in the exercise of the powers conferred by the sessions Judge upon him but looking to the language of the order of the Sessions Judge this contention does not appear to be good. Moreover, under Section 17 the jSessions Judge can only confer powers on an Additional Sessions Judge when he is himself unavoidably absent or is incapable of acting. The order made by the Sessions Judge, Jaipur, in this case on 11-11-1950 was a general order passed with a view to proper and efficient disposal of the criminal cases. It cannot, therefore, be said that the aforesaid order was one under Section 17, Cr. P. C. The order of the Additional Sessions Judge cannot be deemed to be valid under these circumstances, because there appears to be no authority under the law in the Additional Sessions Judge to make any order under Section 497(5), Criminal P. C. 'AIR, 1930 Rang 335 (A)' supports the above view. As the Sessions Judge has not dealt with this case, it seems proper that the cases should be sent to his Court for disposal according to law and the order of the Additional Sessions Judge being ultra vires should be set aside. It is, therefore, ordered accordingly.

4. In view of this order, it is not necessary to deal with the. other petition of the accused under Section 498, Cr. P. C. Mr. Bhandari also does not want to press it. The order of the Magistrate, Shahpura, dated 16-2-1950 shall revive and the accused shall remain on bail till the matter is decided by the Sessions Judge on merits.

Same Parties Kalu and ors. vs State Same Subject Criminal Same Judge Ranawat, J. Acts & Sections Code of Criminal Procedure (CrPC) , 1898 - Sections 9, 17 and...

Criminal