Ananta Charan Mallick Vs. Sayed Goush Ali 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. r.k. patra, j.1. can a judicial magistrate, before issue of process against the accused, for the purpose of deciding whether or not there is sufficient ground for proceeding, direct an executive magistrate to make enquiry under section 202(1) of the code of criminal procedure, 1973. this is the short question that arises for our consideration in this writ petition,2. the facts :the petitioner was the officer-in-charge of titilagarh police station at the material time. the opp. party no. 1 filed complaint (registered as 1. c. c. no. 22 of 1937) against the petitioner under sections 352/504/506 of the ipc, in the court of sub-divisional judicial magistrate, titilagarh. the gravamen of the allegation in the complaint is that on 25-4-1987 at about 8.15 p. m. the complainant (opp. party no. 1) who is an advocate along with another advocate one sri r.k. padh; and one g. v. ramanaiah went to the police station and asked the petitioner the reasons for detention of the truck no. aap 2886 belonging to the said ramanaiah. the petitioner instead of disclosing the grounds for detention of th3 truck, rebuked them in filthy languages. the learned sub-divisional judicial magistrate after taking the initial statement of opp, party no. 1 and alter examining two witnesses directed the learned executive magistrate 1st class, titilagarh to hold an enquiry under section 202(1) of the code of criminal procedure, 1973 (hereinafter referred to as 'the code'). pursuant to the said direction the learned executive magistrate examined witnesses produced by the opp. party no. 1 and submitted the report. on 12-5-1983 the learned sub-divisional judicial magistrate alter perusing the report and state- ments recorded under section 202(1) of the code took cognizance under sections 352/504 of 5pc, and directed issue of summons against the petitioner. the said order dated 12-5-1988 was challenged by the petitioner before the learned additional sessions judge. titilagarh on the grounds, inter alia, that the learned sub-divisional judicial magi- strate being not competent to get the matter enquired into under section 202(1) of the code by an executive magistrate, the order of taking cognizance based on the report made by the learned magistrate is vitiated in law. the learned additional sessions judge by the impugned judgment at annexure-2 rejected the contention of the petitioner by holding that the expression 'by such other person' occurring in section 202(1) of the code includes an executive magistrate and the enquiry conducted by him pursuant to the direction of the learned sub-divisional judicial magistrate is not illegal. the petitioner being felt aggrieved by the said judgment has approached this court tort quashing the entire proceeding of the complaint case.3. shri p. k. mishra, learned counsel for the petitioner reiving on the decisions of this court in omprakash sahu v. manmohan mohanty, 57(1984) clt 355, k. m. lal v. ashok kumar bisi, 1985 (ii) olr 44, sarat kumar patnaik v. new haryana transport company, 1986 (ii) olr 276, a. b. barman v. state of orissa, 1989 (ii) olr 337 and pitambar mishra v. chandra sekhar panda. 1990 (ii) olr 3 contended that the learned sub-divisional judicial magistrate committed illegality in directing the learned executive magistrate to hold enquiry under section 202(1) of the code and the cognizance having been taken on the basis of such report, the order is vitiated. shri s.p. mishra, learned counsel for the opposite party no. 1 on the other hand relying on the decisions of the patna high court in ramprabesh rai v. bishu mandal, 1981 cr lj 139, and ramesh cnandra v. state of bihar, 1989 crl lj 476 submitted that no legality was commited in directing the executive magistrate to hold enquiry under section 202(1) of the code and the order taking cognizance cannot be held to be invalid on that ground alone.4. the expression 'by such other parson' occurring in section 202(1) of the code whether includes a judicial magistrate came up for cogsideration before this court in omprakash sahu v. manmohan mohanty, 57(1984) clt 365. in that case, the sub- divisional judicial magistrate after recording the initial statement of the complainant sent the matter to another judicial magistrate to conduct enquiry under section 202(1) of of the code and submit his report. on the basis of the report submitted by the judicial magistrate, the sub- divisional judicial magistrate took cognizance on certain offences. the said order of taking cognizance was assailed by the accused in an application under section 482 of the code. b. k. behera, j. after tracing the legislative history of section 202. of the code and codsidering the suggestions made by the law commission of india in its 41st report and after taking note of the fact of separation of the judiciary from the executive held that no judicial magistrate can be entrusted with an enquiry into a complaint under the direction of either the chief judicial magistrate or the sub-divisional judicial magistrate or any other judicial magistrate who is empowered to take cognizance of the offence. the learned judge held that the expression 'by such other- person' in section 202(1) of the coda excludes a judicial magistrate and the order talcing cognizance based on the report of enquiry submitted by the judicial magistrate is illegal having been passed in violation of section 202(1).in k. m. lal v. ashok kumar bisi, 1985 (ii) olr 44 the very question whether the expression 'by such other person' includes judicial magistrate came up for consideration. in that case, the sub- oivisiona! judicial magistrate directed a judicial magistrate for enquiry under section 202(1) of the code. d.p. mohapatra, j. reiving on omprakash sahu(swpra) held that section 202 of the old code empowered the magistrate to direct an enquiry by a magistrate subordinate to him or by a police officer or other person as he thinks fit and in the new provision of section 202 the words 'by any magaistrate subordinate to him' having been omitted, the question of entrusting the enquiry to sub- ordinate magistrate does not arise and necessarily, the words 'by such other person' excludes a judicial magistrate subordinate to the magi- strate directing the enquiry. accordingly, it was held that the enquiry conducted by the judicial magistrate was not in accordance with the provisions of section 202(1) of the code.in sarat kumar patnaik v. new haryana transport co. 1986 (ii) olr 276, a judicial magistrate directed another judicial magistrate to hold enquiry under section 202(1) of the code. following the ratio of omprakash sahu (supra) k. p. mohapatra, j. held that such enquiry is improper and cognizance taken on the basis of such enquiry is invalid.in a. b. barman v. state of orissa, 1989 (ii) ocr 237, the chief judicial magistrate entrusted the enquiry under section 202(1) of the code to an additional chief judicial magistrate. k. p. mohapatra, j. following the ratio of omprakash sahu (supra) held that a judicial magistrate cannot be entrusted to hald enquiry under section 202(1) and the order passed on the basis of such enquiry report is invalid.in pitambar mishra v. chandra sekhar panda, 1990 (ii) olr 3, the chief judicial . magistrate directed a judicial magistrate to hold enquiry under section 202(1) of the code. v. gopalaswamy, j. held that section 202 of the old code authorised a magistrate to hold an enquiry made by a magistrate subordinate to him. but such a course is not open to him under section 202 of the new code in view of the fact that the provision for enquiry by a subordinate magistrate has now been dispensed with by way of deletion, under the new code, if the magistrate decides to hold enquiry into the matter, that enquiry must be done by himself and he cannot direct some other magistrate to conduct the enquiry. it was accordingly held that the chief judicial magistrate has no jurisdiction to direct the judicial magistrate to conduct enquiry under section 202 of the code.5. it is apposite to note here that in each of the aforesaid cases it was a judicial magistrate who was directed to hold enquiry under sec 202(1) of the code. in view of his, the ratio of omprakash sahu (supra) which has been followed in other four cases (supra) can be of little assistance to the petitioner inasmuch as in the case at hand, it was an executive magistrate and not a judicial magistrate who was directed to hold the enquiry under section 202(1) of the code it is, therefore, necessary to examine the relevant provisions of the code to find out if the vice of invalidity would overshade the enquiry conducted by an executive magistrate under section 202(1) of the code pursuant to the direction made by a judicial magistrate. in other words, whether an exacutive magistrate can come within the expression 'by such other person' occurring in section 202(1) is the moot point for consideration.6. sub-section (1) of section 202 of the code, so far as relevant, states that any magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been transferred to him under section 192 of the code may, if he thinks fit, postpone the issue of process against the accsued, and either enquiry into the case himself or direct an investigation to be made by a police officer or 'by such other person' for the purpose of deciding whether or not there is sufficient ground for proceeding the word 'magistrate' mentioned above refers to a judicial magistrate in view of the provision contained in sub-section (1 of section 3 of the code which states that any reference to a magistrate in the code, without any qualifying words and unless the context otherwise requires, shall be construed as reference to a judicial magistrate, after separation of the judiciary from the executive, it is the judicial magistrate who is alone compent to taka cognizance of the offence. accordingly, if a judicial magistrate wants to proceed under section 202(1) on a complaint of an offence of which he is authorised to take cognizance, he has the discretion either to enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. as already noted, the crux of the problem is whether an executive magistrate can be held to be amongst 'such other persson' who could be directed to make investigation for the purpose of deciding whether or not there is sufficient ground for proceeding. at this stage, we may have a look at the definitions of 'enquiry' and 'investigation' which have bearing on the point involved. section 2(g) defines 'enquiry' to mean every enquiry, other than a trial, conducted under the code by a magistrate or court. 'investigation' has been defined in section 2(h). it says 'investigation' includes all the proceedings under the code for the collection of evidence conducted by a police officer or by any person (other than a megistrate) who is authorised by a magistrate in that behalf. while taking action in terms of section 202(1), if the judicial magistrate chooses to adopt the second alternative, namely, investigation to be made by such other parson not being a police officer, he cannot directs judicial magistrate to conduct the investigation because of the fact investigation by a judicial magistrate is not contemplated under the code which is apparent from the definition of 'investigation' where there is clear reference to investigation by any person other than a magistrate (which means a judicial magistrate). as investigation is held tor collection of evidence, the judicial magistrate, it he thinks fit instead of asking to police officer, can direct an executive magistrate to make investigation. since an executive magistrate is not authorised to take cognizance or to hold any trial under the code, we do not find any bar if a judicial magistrate directs investigation to be made by an executive magistrate under section 202(1) of the code. there is also no legal impediment for an executive magistrate to conduct investigation inasmuch as sub-section (3) of section 202of th3 code specifically provides that if the investigation under sub-section (1) is made by a person not being police officer, he shall have for that investigation all the powers conferred by the code on an officer-in-charge of a police station except the power to arrest without warrant. we may state here at the cost of repetition that investigation under section 202(1) of the code cannot be made by a judicial magistrate for the reasons stated by this court in the cases of omprakash sahu, k. m. lal, sarat kumar patnaik, a. b. barman and pitambar mishra (supra).7. in the present case, the learned sub-divisional judicial magistrate in the orders dated 30-1-1s88 and 4-2-1988 has not used the word 'investigation' but stated that 'enquiry' would be conducted by the executive magistrate. the orders dated 30-1-1983 and 4-2-1988 are extracted hereunder :'30-1-88. perused the substance of the examination of the cornplt and his witnesses made under section 200. cr pc, i feel, since this present case has been filed against a police officer, so before taking cognisance of the offence there should be an enquiry under section 202. cr pc by the executive magistrate (1st class) titilagarh for the purpose of deciding whether or not there is sufficient ground for proceeding.accordingly the complit it directed to supply a copy of the complt. petn. within 3 days, to be forwarded to the executive magistrate for enquiry under sections 202 cr pc. call on 4-2-1988 for further order.sd/- l. d. rath30-1. s. d. j. m. (t)4-2-88, advocate for the complt. files hazira alongwith copy of complt. petn. send the copy of complt petn. to the executive magistrats 1st class, titilagarh for enquiry under sec. 202. cr pc fixing the case to 8-3-1988 for awaiting report.sd/- l. d. raths. d. j. m (t).'it is evident from the aforesaid two orders that the learned sub-divisional judicial magistrate instead of enquiring into the case himself wanted an investigation to be made. he accordingly entrusted the job, of investigation to the executive magistrate 1st class, titilagarh. he did so to collect evidence for the purpose of deciding whether or not there is sufficient ground for proceeding in the matter. the wrong use of the word 'enquiry' does not affect the validity of the orders referred to above because we have to see to the substance of the order and not the form.for the reasons aforesaid, we are of the considered opinion that an executive magistrate is included amongst 'such other person' mentioned in section 202(1) of the code. consequently, the impugned enquiry made by the learned executive magistrate and the report submitted by him cannot be held to be invalid or illegal. the order taking cognizance accordingly cannot be faulted with.8. the very question whether an executive magistrate can be directed to investigate under section 202(1) of the code came up for consideration before a division bench of patna high court in ramprabesh rai v. bishnu mandal, 1981 crl lj 130- in that case the chief judicial magistrate directed an executive magistrate to investigate into the complaint. the court after examining the provisions of section 202(1) and other relevant provisions of the code came to hold that there is no bar in directing an investigation to be made by an executive magistrate under sec 202(1) in ordsr to collect evidence as an executive magistrate is included amongst 'such other person' referred to in section 202. the same view has been taken by a learned single judge of that court in ramesh chandra v. state of bihar, 1989 cr lj 476. in that case, the chief judicial magistrate directed an executive magistrate for enquiry under section 202. the learned judgs held that investigation can be made by an executive magistrate under section 202(1) of the code but it cannot he held by a judicial magistrate. it was also held that the report submitted by the executive magistrate is not illegal nor the order taking cognizance of such report is invalid. we are in respectful agreement with the learned judges who rendered the judgment in the aforesaid two cases.9. the learned counsel for the opposite party in hi9 memo dated 5-8-1994 referred to a judgment of this court in ramakanta mohanty v. ajaya kumar routray, (1993)6 ocr 293 in support of his submission that no illegality was committed in directing the executive magistrate to hold enquiry. on perusal of the said judgment of ramakanta mohanty (supra) we find that the ratio of that case has absolutely no bearing on the point involved in the present case. what happened in that case was that the sub-divisional judicial magistrate directed the police to investigate into the allegations made in the complaint. the question came up for consideration was whether the two words 'either' and 'or' are mutually exclusive or not. the contention of the accused was that the sub-divisional judicial magistrate had to follow one of the two courses, i.e. either to enquire into the case by himself or to direct investigation to be made. the decision rendered in that case accordingly has no bearing to the present case.10. for the reasons aforesaid, we do not find any merit in this petition which is accordingly dismissed. there shall be no order as to costs.g.b. pattnaik, j.i agree.