Nirmal Chandra Das and anr. Vs. State of Orissa and ors. - Court Judgment

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- 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. l. mohapatra, j.1. the petitioners have approached this court for a direction to entrust the investigation of rajkanika p.s. case no. 76 of 1999 to an impartial agency which is capable of undertaking scientific investigation to unearth the truth. two young boys, namely, sisir alias papu and soumitra alias chinu between the age group of 17 and 18 were found hanging from the branch of a tree on 5.12.1999. sisir is the son of petitioner no.l and soumitra is the son of petitioner no. 2. the allegation made in the writ application is that both the boys were last seen on 4.12.1999 evening talking to the daughter of one prafulla panda. it is further alleged that the said prafulla panda and his brother prahallad panda assaulted both the boys while they were talking to the daughter of prafulla panda and in the next morning both the boys were found hanging from a tree. it is also stated in the writ application that the police officials of rajkanika police station had got information about the incident earlier than the petitioners, but did not go to the spot awaiting an f.i.r. and only after the f.i.r. was lodged, an officer from the police station visited the spot. the petitioners further alleges that the mouths of both the boys were gagged by similar cotton fabrics and the manner in which both the boys were found hanging gives rise to suspicion as to whether it is a case of suicide or homicide. both the petitioners have expressed their grave concern about the conduct of the investigating agency in dealing with the matter in a casual manner without approaching in a scientific way.2. after hearing the learned counsel for the petitioners we directed production of the case diary. on perusal of the case diary we found that no investigation has been made after 17th december, 1999 and the case diary indicates that no action whatsoever has been taken by the investigating officer after 1 7th december, 1 999. learned counsel for petitioner submits that several witnesses volunteered to give statements, but the i.o. did not record the same. the petitioners also allege that the post mortem report was purposefully made to indicate a case of suicide. in course of hearing the learned counsel for petitioners has submitted a list of 13 witnesses who were/are willing to give statements, but their statements have not been recorded. from the records we find that out of 13 persons, one has been examined by the police and her statement has been recorded. we have carefully perused the evidence so far recorded and photographs of both the boys hanging from the tree and we are not expressing any opinion about the merits of the case, as it may either influence the investigation or prejudice those persons against whom a case may be made out, if further investigation is made. a prayer was made on behalf of the petitioners in course of hearing to hand over the investigation to the central bureau of investigation who are capable of a scientific investigation. we are unable to accept the said prayer, but feel that this is a case where scientific and effective investigation is necessary. learned counsel appearing for the state submits that the crime branch is capable of conducting a scientific investigation and there are experts for conducting investigation in different types of cases.3. we, therefore, direct as follows :(1) the investigating officer of rajkania police station shall hand over the case diary of rajkanika p.s. case no. 76 of 1999 to the crime branch for further investigation.(2) a competent officer from the crime branch will be assigned the job of investigation and he shall take up investigation from the stage where it has been left.(3) the crime branch shall examine the witnesses who have offered or will offer themselves to make statement and such witnesses are sadananda das, dillip kumar palai, adikanda pandaba, khetrabasi mallik. fakir charan mallik, satrughna mallik, sahadev mallik, santosh kumar mallik. soroj kumar palai, rabindranath panda, ankur charan naik and ramesh ch. sahoo. if necessary, tiki dei who had been examined by the i.o. may also be re-examined.(4) the crime branch will also see that if any of these witnesses are willing to make a statement under section 164, cr.p.c. they may be produced before the concerned magistrate for recording such statement.(5) if the investigating officer of the crime branch feels the necessity of a second post mortem, he may do so, if possible.(6) the investigation shall be completed within a period of ninety days from the date of records are handed over to the crime branch.4. with the aforesaid directions, the writ application is disposed of.pradipta ray, j.5. i agree.