Budhadev Panda Vs. State of Orissa and anr. - 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 first part indicates that the high court may be persuaded on good reasoning that it would be expedient for the ends of justice to transfer the case. the wordings of the provision clearly show that the high court can exercise the power of transfer in respect of any type of criminal cases. so, the petition for committing the criminal case pending before a magistrate to the court of session is clearly maintainable in law.a. pasayat, j.1. petitioner has prayed for a direction to the learned judicial magistrate, first class, narasinghpur (in short 'jmfc') to commit g.r. case no. 10. of 1993 to the court of session, cuttack to be tried as counter-case to s.t. case no. 375 of 1993 pending before learned second additional sessions judge, cuttack. 2. background facts as portrayed by petitioner to support the prayer in essence are as follows:petitioner and six others are arraigned in g.r. case no. 10 of 1993 pending in court of learned jmfc, narasinghpur, for alleged commission of offences punishable under sections 147, 148 and 323, 325, 294, 452 read with section 149 of the indian penal code, 1860 (in short, 'ipc'). charge-sheet has been submitted after investigation and learned jmfc has taken cognizance of aforesaid offences. the said g.r. case corresponds to kanpur p.s. case no. 4 of 1993. another case i.e. kanpur p.s. case no. 3 of 1993 corresponding to g. r. case no. 9 of 1993 was instituted for commission of offence under section 302 read with section 109 ipc and section 27 of arms act. this case has been committed to the court of session and is pending trial. it has been renumbered as sessions trial no. 376 of 1993. petitioner is informant in the aforesaid kanpur p.s. case no. 3 of 1993.3. according to petitioner both the cases are counter in nature to each other, and interest of justice requires that they should be tried one after other. it is submitted that this court alone has jurisdiction to direct commitment of a case to the court of session, even though the same is not triable by court of session exclusively. reference is made to section 407 of the code of criminal procedure, 1973 (in short, the 'code'). learned counsel for opp. party no. 2 fairly accepted that the two cases in question are counter to each other and in the normal course should be tried one after other. but according to him, section 407 of the code does not authorise direction for commitment of a case which is not exclusively triable by the court of session.4. section 407 of the code, so far as relevant, reads as follows :'407, power of high court to transfer cases and appeals. (1) whenever it is made to appear to the high court-xx xx xx(c) that an order under this section is required by any provision of this code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order-xx xx xx(iii) that any particular case be committed for trial to a court of session;xx xx xxunder section 407(1)(c) of the code, the transfer of a case can be made from one court to another if it tends to the general convenience of parties or witnesses. the principle to be followed in questions of transfer is that it is not so much a matter of convenience, nor of possible injustice which has to be considered, it is the apprehension in the minds of accused persons and incidentally the public, which ought to be taken into account. while it is true that convenience and expediency are factors to be considered in trial of a case, beyond even those considerations is most important consideration that justice should be done. question as to whether transfer of a trial before a particular magistrate is expedient in the ends of justice or not, has to be considered on the point of view of the accused also. a prayer for transfer is always to be considered with reference to the facts and circumstances of each case. no hard and fast rule can be laid down as a matter of principle. while greater emphasis to be laid on the convenience and interest of the accused than of the prosecutor, even the interest of the prosecutor and his right to institute criminal proceedings permissible, under law are not to be unreasonably whittled down. a balance has to be struck.5. the grounds for transfer include, inter alia, transfer of a case or appeal on the ground that it is expedient for the ends of justice. clause (c) of sub-section (1) of section 407 runs into two parts. the first part indicates that the high court may be persuaded on good reasoning that it would be expedient for the ends of justice to transfer the case. the second part contains a kind of compulsion which is to the effect that if any provision in the code indicates that a transfer is merited, then the case may be transferred. under sub-clause (iii) of clause (c) of sub- section (1) the high court may order that the accused persons may be committed for trial to the court of session. the high court's power to pass an order under section 407(1)(c)(iii) is not limited in its scope only to cases triable by the court of session. the wordings of the provision clearly show that the high court can exercise the power of transfer in respect of any type of criminal cases. so, the petition for committing the criminal case pending before a magistrate to the court of session is clearly maintainable in law. section 407(1)(c) read with clause (iii) thereof provides that whenever it is made to appear to the high court that an order under this section is required by any provision of the code or will tend to the general convenience of the parties or witnesses, or is expedient in the interest of justice, the high court may order that any particular case be committed for trial to a court of session. therefore, high court alone can exercise the power to the above effect and the court of session has no power to direct the commitment of a case pending before a subordinate magistrate to the court of session and so proviso to sub- section (2) does not apply to a matter of this nature. if a case and counter-case are tried and disposed of by the same court, and heard by one officer, that will tend to the general convenience of the parties as also the witnesses besides avoiding conflict of judgments.6. in the circumstances indicated by the learned counsel for parties, it is expedient in the ends of justice that two cases should be tried by the court of session. accordingly, i direct learned jmfc, narasinghpur to commit g.r. case no 10 of 1993 pending before him to the proper court of session, so that the same can be tried and disposed of with s.t. no. 376 of 1993 pending before learned second additional sessions judge, cuttack. on commitment, learned sessions judge shall pass appropriate order for trial of two cases by one officer.the criminal misc. case is allowed.