Halima Bibee Vs. State of Orissa and 11 ors. - 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. - as stated above, learned magistrate has not applied that principle as well. , banpur shall hear and dispute of that application in accordance with law but after affording an apportunity of hearing to the accused persons as well as the proposed accused persons.order1. heard. this revision application is disposed of at the stage of hearing on admission after hearing argument from the parties. 2. informant is the petitioner. prosecution i. e., the state of orissa is the opposite party no. 1. the accused persons and the proposed accused persons are the opposite party members 2 to 12. 3. in the midst of the trial, at the instance of the petitioner, prosecution filed an application purporting to be one under section 319, cr. p. c. for addition of the persons as accused. on 22-1-2000 learned j.m.f.c. banpur rejected that application on the ground that assistant public prosecutor did not remain present to move that application. learned cdunsel for the petitioner challenges correctness of that order on the ground that such an application should not have been dismissed for default and learned magistrate should have considered the same on the basis of evidence on record. learned standing counsel endorses his support to that argument. learned counsel appearing for the opposite party members, on the other hand, contends that when that application was not moved the trial court had no option other than to reject that application. in otherwords, he defends the impugned order.4. being abreast of the aforesaid facts and contention and the provision of law in section 319, cr. p. c., this court holds that learned magistrate was not justified in rejecting that application for mere absence of the assistant public prosecutor. the provision in section 319, cr. p. c. provides that if it appears from the evidence that any person not being the accused has committed any offence for which such persons could be tried together with the accused then the court may proceed against such persons for the offence which appears to have been committed by such person. thus, it is not only the responsibility of the prosecution or the informant but also equally the duty of the trial court to apyly his judicial mind during the trial if any persons should be added as an accused in the manner indicated above because of availability of evidence making such persons to face the trial with the accused persons. under such circumstance, rejection of such an application for the default of the assistant public prosecutor is not a correct approach. 5. apart from that, it is stated at the bar that after that application was filed by the prosecution and before it was rejected was not moved, learned j. m. f. c. did not issue notice to the proposed accused persons to afford them an opportunity of hearing. though there is no provision directly providing for such a procedure but the principle of natural justice demands that the proposed accused should be given a notice and if necessary should be given an opportunity of hearing while considering such an application. as stated above, learned magistrate has not applied that principle as well.6. for the reasons stated above, this court finds the impugned order to be liable to be quashed. accordingly, while setting aside the order dated 22-1-2000 (impugned order) this court directs that learned j. m. f, c., banpur shall hear and dispute of that application in accordance with law but after affording an apportunity of hearing to the accused persons as well as the proposed accused persons. that application be heard and disposed of, as far as practicable, within a period of one month from the date of receipt of copy of this order and further trial be taken up after disposal of that application. petitioner undertakes to produce a certified copy of this order in the trial court by 19-3-2001. the criminal revision is accordingly allowed. intimate the court below. 7. crl. revision allowed.

Judgment:
ORDER

1. Heard.

This revision application is disposed of at the stage of hearing on admission after hearing argument from the parties.

2. Informant is the petitioner. Prosecution i. e., the State of Orissa is the opposite party No. 1. The accused persons and the proposed accused persons are the opposite party members 2 to 12.

3. In the midst of the trial, at the instance of the petitioner, prosecution filed an application purporting to be one under section 319, Cr. P. C. for addition of the persons as accused. On 22-1-2000 learned J.M.F.C. Banpur rejected that application on the ground that Assistant Public Prosecutor did not remain present to move that application. Learned Cdunsel for the petitioner challenges correctness of that order on the ground that such an application should not have been dismissed for default and learned Magistrate should have considered the same on the basis of evidence on record. Learned Standing Counsel endorses his support to that argument. Learned counsel appearing for the opposite party members, on the other hand, contends that when that application was not moved the trial court had no option other than to reject that application. In otherwords, he defends the impugned order.

4. Being abreast of the aforesaid facts and contention and the provision of law in section 319, Cr. P. C., this Court holds that learned Magistrate was not justified in rejecting that application for mere absence of the Assistant Public Prosecutor. The provision in section 319, Cr. P. C. provides that if it appears from the evidence that any person not being the accused has committed any offence for which such persons could be tried together with the accused then the court may proceed against such persons for the offence which appears to have been committed by such person. Thus, it is not only the responsibility of the prosecution or the informant but also equally the duty of the trial court to apyly his judicial mind during the trial if any persons should be added as an accused in the manner indicated above because of availability of evidence making such persons to face the trial with the accused persons. Under such circumstance, rejection of such an application for the default of the Assistant Public Prosecutor is not a correct approach.

5. Apart from that, it is stated at the bar that after that application was filed by the prosecution and before it was rejected was not moved, learned J. M. F. C. did not issue notice to the proposed accused persons to afford them an opportunity of hearing. Though there is no provision directly providing for such a procedure but the principle of natural justice demands that the proposed accused should be given a notice and if necessary should be given an opportunity of hearing while considering such an application. As stated above, learned Magistrate has not applied that principle as well.

6. For the reasons stated above, this Court finds the impugned order to be liable to be quashed. Accordingly, while setting aside the order dated 22-1-2000 (impugned order) this Court directs that learned J. M. F, C., Banpur shall hear and dispute of that application in accordance with law but after affording an apportunity of hearing to the accused persons as well as the proposed accused persons. That application be heard and disposed of, as far as practicable, within a period of one month from the date of receipt of copy of this order and further trial be taken up after disposal of that application. Petitioner undertakes to produce a certified copy of this order in the trial court by 19-3-2001.

The Criminal Revision is accordingly allowed. Intimate the court below.

7. Crl. Revision allowed.