Radharani Panda Vs. Arnapurna Padhi Alias Panda and anr. - 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. - though the learned sdjm was satisfied that a prima facie case of commission of offence punishable under section 498a was made out. the essential elements to constitute an offence under section 494, ipc, accor- ding to him, were that the necessary ceremonies like hstaganthi, sapiapadi and lajya homa were to be proved in both the marriages of the accused. 4. power under section 319, crpc can be exercised by the court suo motu or on the application of someone including the accused already before it, if it is satisfied that any person other than the accused has committed any offence for which he is to be tried together with the accused. the expression 'appears to have committed' used with reference to such person clearly shows that material to link him with the offence must exist. sessions judge has concluded that necessary ceremonies like hastaganthi, saptapadi and lajya homa of an accused in both the marriages are to be proved.a. pasayat, j.1. petitioner's motion to implead arnapurna padhi alias panda which was accepted by the learned judicial magistrate, first class, jaipur having been upset by the learned additional sessions judge, jajpur in revision, this application has been filed.2 the background facts giving rise to this application are as follows:the petitioner fried a complaint in the court of learned sub- divisional judicial magistrate, jajpur (in short, 'sdjm')on the basis of which !cc no, 396 of 1990 has been registered. cognizance was taken by the learned sdj.m of offence punishable under section 498a/34, indian penal code, 1350 (in short, '1pc') ramesh chandra panda.kesbaba chandra panda and santi lata panda, the pro forma opposite parties were directed to face trial. it is relevant to note that complaint was filed in respect of four persons including the present opposite party no. % arnapurna panda. process was issued only against pro forma opposite parties, but not against opp. party no. 1. after some witnesses were examined petition was filed by the complainant to imofead opp party mo. 1. the prayer was accepted by the learned sdjm, but the learned additional sessions judge, jajpur reversed it. essentially the dispute relates to question whether opposite party no. married accused ramesh chandra panda during subsistence of a valid massage between the petitioner and accused ramesh. according to the petitioner the marriage was solemnized according to hindu rites and , customs on 27-5-1982 in the premises of goddess biraja temple. after marriage, the complainant stayed in the house of accused ramesh as his wife. but, since her father could not satisfy the demand of dowry she was ill-treated, tortured and assaulted. subsequently, ramesh married arnapurna not withstanding her protest. information was lodged before police, but no effective action was taken. complaint was lodged before the learned sdjm on 22-12-1990. her initial statement on solemn affirmation was recorded, and enquiry was conducted under section 202, cr pc. after recording the statement of one witness, no summons was directed to be issued against arnapurna. though the learned sdjm was satisfied that a prima facie case of commission of offence punishable under section 498a was made out. the case was transferred to the learned judicial magistrate, first class jajpur (in short,'jmfc') for trial. before charge three witnesses were examined. charge was framed under section 498a read with section 34,ipc against three accused persons, besides under section 494, ipc against ramesh. the three witnesses were cross-examined after charge, and discharged on 15-4-1992 and 23-7-1992. two other witnesses were examined,cross-examined and discharged on 4-11-11992. an application was moved or 5-12-1992 purported to be one under section 319, crpc for summoning arnaourna to face trial for commission of offence punishable under 494. ipc, along with accused ramesh. this petition was allowed. since the prayer was accepted. arnapurna moved for interference in revision. by the impugned order the learned addl. sessions judge has held that the evidence was not sufficient to prove commission of offence under section 494, ipc. the essential elements to constitute an offence under section 494, ipc, accor- ding to him, were that the necessary ceremonies like hstaganthi, sapiapadi and lajya homa were to be proved in both the marriages of the accused. it was observed that no cognizance was taken of an offence punishable under sec 494, !pc by the learned sdjm, and there- fore, charge could not have been framed. he did not accept the submission that while framing charge there was implied cognizance of an offence punishable under section 494, ipc he referred to the evidence of pws 1 to 4 and observed that they had earlier not stated about their direct knowledge regarding second marriage. they stated to have heard it from others. the persons from whom they heard were not examined, except pw 5 who was not named as a witness in the complaint petition.3. the learned counsel for the petitioner submits that the approach of the learned additional sessions judge is erroneous. he was not deciding the case on merits. he was primarily concerned with the question whether there was material to show that the person who was not an accused should be tried together with the accused the learned counsel for arnapurna on the other hand submitted that the application to implead arnapurna was an after-thought and the revisional court has rightly rejected the prayer.4. power under section 319, crpc can be exercised by the court suo motu or on the application of someone including the accused already before it, if it is satisfied that any person other than the accused has committed any offence for which he is to be tried together with the accused. this power is discretionary with the court and the discretion must be exercised judicially having regard to the facts and circumstances of each case. ft is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. the word 'evidence' in section 319 contemplates the evidence of witnesses given before the court. under sub-section (4)(1b) of section 319, crpc it is specifically made clear that it will be presumed that the newly added person had been an accused person, when the court took cognizance of the offence upon which the inquiry or trial was commenced. this would show that by virtue of sub-section (4)(1)(b) of section 319 a legal fiction is created that the cognizance would be presumed to have bean taken, so far as the newly added accused is concerned.5. a bare reading of the order of the learned addl. sessions judge shows that he was thoroughly confused and misconceived with regard to scope and ambit of section 319. the essential elements to constitute an offence under section 494, 1pc as indicated by him, are imaginary. section 494 punishes the offence known to the english saw as bigamy. the section requires (i) existence of the first wife or husband when the second marriage is celebrated; and (ii) the second marriage being void by reason of the subsistence of the first according to the law applicable to the person violating the provisions of the section,6. the question whether there was a second marriage during the existence of a valid marriage has to be adjudicated by considering evidence to be led by parties. while considering the question whether action under section 319. crpc is called, for the court is not primarily concerned with the question whether the person against whom action is proposed shall be acquitted or convicted. the court can act where it appears to it from evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused. the expression 'appears to have committed' used with reference to such person clearly shows that material to link him with the offence must exist. the adequacy or otherwise of the material for the ultimate result of trial is not the determinative factor.7. the learned addl. sessions judge has concluded that necessary ceremonies like hastaganthi, saptapadi and lajya homa of an accused in both the marriages are to be proved. the same is a matter for trial when evidence can be led on that aspect. this is not a case where the evidence of pws 1 to 4 is totally silent on the second marriage aspect. in fact in the complaint petition itself arnapurna had been impleaded. but process was not issued to her. the learned counsel for the opposite parties submitted that the petitioner having not challenged such non-issue at the first stage, should not be permitted to make any grievance at a latter stage. this is not a ground on which the learned addl. sessions judge has interfered. his view that no cognizance was taken of the offence punishable under sections 494, ipc is without any basis. undisputedly charge has been framed. law does not prescribe any particular mode by which cognizance is to be taken. the learned jmfc has referred to the evidence of oop. party nos. 1 to 4 to conclude that the same was sufficient to act under section 319, crpc. since the learned addl. sessions judge has acted with material irregularity basing his confusions on erroneous premises, the same is indefensible. the order of the learned addl. sessions judge is set aside and that of learned jmfc is restored. it is made clear that i have not expressed any opinion about the merits of the dispute involved in trial.the revision application is allowed.