iswar Sahu and 6 ors. Vs. State of Orissa - 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. - the trial court evidently being satisfied regarding the desirability of examining .the said investigating officer directed for issuing bailable warrant of arrest against the said investigating officer to ensure his attendance for being examined as a witness. the prosecution as well as defence is likely to be prejudiced due to non-examination of the investigating officer depending upon the facts and circumstances of a given case.p.k. misra, j. 1. the accused persons have filed this petition under section 482 of the code of criminal procedure (hereinafter referred to as the 'code'), challenging the legality of order dated 22-4-193s passed by the additional sessions judge, bolangir, in sessions case no. 51/18 of 1995 dispensing with the examination of the investigating officer. 2. the facts giving rise to the present application are as follows : the accused persons are facing trial under section 302/34, indian penal code. after examination of other prosecution witnesses, chintamani sahu, who was one of the investigating officers in the case was to be examined as a prosecution witness on 2-2-993, but the said investigating officer after having received the summons to appear before the court, sought for an adjournment. on 16-2-1996, a petition was filed on behalf of the accused persons stating that the investigating officer should be examined as a witness enabting the accused persons to cross-examine him. on the very day a memo was filed on behalf of the additional public prosecutor indicating that the court should enforce the attendance of the investigating officer by taking appropriate legal steps under the code of criminal procedure. the trial court evidently being satisfied regarding the desirability of examining . the said investigating officer directed for issuing bailable warrant of arrest against the said investigating officer to ensure his attendance for being examined as a witness. though it is not clear as to whether bailable warrant had been executed or not, it appears that the investigating officer has not attended the court on any subsequent date, ultimately, on 22-4-1996, the trial court passed an order to the following effect:'all the accused persons are present. i. o. chintamani sahu is absent. in this connection the order sheets will explain how the court has taken all possible steps to procure the attendance of i. 0. ultimately warrants were issued against him, but of no use. hence the evidence of the 1. o. is dispensed with. prosecution cases closed. the learned counsel for defence again pointed out in his petition dated 16-2-1996, but in that respect order was passed on the very day. hence, prosecution case is closed. put up tomorrow for the accused statement.'3. the accused petitioners have approached this court seeking for a direction to the trial court to take coercive steps against the said investigating officer to enforce his attendance as a witness. the learned standing counsel relying upon the memo filed by the additional public prosecutor in the trial court also submitted that the investigating officer should be examined as a witness, as otherwise, adverse inference may be drawn against the prosecution case.4. the imprtance of examination of investigating officer in a criminal case cannot be over-emphasised. the prosecution as well as defence is likely to be prejudiced due to non-examination of the investigating officer depending upon the facts and circumstances of a given case. in the present case, both the additional public prosecutor and the defence counsel had pressed hard for examination of the investigating officer and their prayer had been accepted by the trial court and accordingly steps had been taken. if in spite of vaild notice to appear as a witness, a person neglects or refuses to attend the court without just excuse, the court can proceed against such recalcitrant witness and punish the witness by following the summary procedure as envisaged under section 350 of the code. in the facts and circumstances of the present case, the trial court should have taken all possible coercive steps to enforce the attendance of the witness. if the bailable warrant issued by the court had not been executed due to lack of correct address, the trial court could have taken steps through the police department and appropriate letters could have been written to the superintendent of police or any other higher authority either to furnish the correct address of the aforesaid investigating officer or to enforce the attendance of such witness. as already indicated, if in spite of valid notice, the investigating officer refused to attend the court, appropriate steps could have been taken in accordance with section 350 of the code. without following the aforesaid course, the trial court seems to have taken resort to an easy way out by closing the prosecution evidence without envisaging the consequence of such non-examination of the investigating officer. in view of the aforesaid, the order dated 22-4-1996 passed by the trial court is not sustainable and is hereby quashed. the trial court is directed to take all possible ceorcive steps to secure the attendance of the concerned investigating officer. the criminal misc. case is accordingly allowed.