Md. Muzaffar HussaIn Khan and anr. Vs. State of Orissa and 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. - in the application it was stated that in addition to three persons who had been arraigned as accused, role of some others clearly established them to be equally responsible as would be evident from statements of many who were examined by the police during investigation. allegations are also levelled against the prosecuting lawyer to the effect that for reasons best known to him, there was opposition to the motion made by the petitioner no. misra, learned counsel appearing for some of the opposite parties, submits that the materials on record clearly show the fallacy in the stand of petitioner no.a. pasayat, j.1. this is an application questioning correctness of order dated 9-10-1990 passed by the learned additional sessions judge, balangir, holding that the petition dated 6-9-1989 filed by petitioner no. 1 styled as one under section 319, code of criminal procedure, 1973 (in short, the 'code') to frame charge against some persons, whose name did not appear in chage-sheet was without merit. the said persons are arrayed as opp. party nos. 2 to 11 in this application. in the application it was stated that in addition to three persons who had been arraigned as accused, role of some others clearly established them to be equally responsible as would be evident from statements of many who were examined by the police during investigation. the learned additional sessions judge rejected the motion holding that the stage for exercising powers under section 319 of the code had not come. he, however, observed that if during trial circumstances come to fore to warrant proceeding against others, the same shall be done at the appropriate stage. nevertheless he referred to statements of persons recorded by the investigating officer to conclude that prima facie there was no material to proceed against any other person.2. mr swain, learned counsel appearing for the petitioners submits that though the petition was labelled under section 319 of the code, in fact the prayer was to frame charge aggainst opp. party nos. 2 to 11 in terms of section 228 of the code. allegations are also levelled against the prosecuting lawyer to the effect that for reasons best known to him, there was opposition to the motion made by the petitioner no. 1. it is his case that in the greater interest of justice, the learned additional sessions judge should not have looked at the label but should have gone into the substance of the petition. 3. mr. h. s. misra, learned counsel appearing for some of the opposite parties, submits that the materials on record clearly show the fallacy in the stand of petitioner no. 1 about any role having been played by opp. party nos. 2 to 11 in the alleged incident. he further raises an objection as to the maintainability of the application at the behest of petitioner no. 2, who was not a co-petitioner with petitioner no. 1, in the application filed on 6-9-1989. 4. section 319 of the code aims at bringing into trial all those who are responsible for a crime. during trial if it appears from the evidence that any person not being accused has committed any offence for which he or she can be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed, section 319 sets out powers of a court to proceed against any person not shown or mentioned as accused, if it appears from evidence that such person has committed an offence for which he could be tried together with the main accused against whom an enquiry or trial is being held. it authorises the court to issue a warrant or summons against such person if he is not attending the court; and, if he is so attending, to detain such person for the purpose of inquiring into or trial of the offence which he appears to have committed. the proceedings against such person shad be commenced do novo and witnesses are to be re-heard. for exercising power under section 319, it is sufficient if only prima facie case is made out. the power may be used sue motu or on an application by the prosecution or the accused. power under section 319 is really an extraordinary power which is conferred on the court to do total justice. it should be used with caution and only if compelling reasons exist 1or proceeding against a person against whom action has not been taken. court is not required to evaluate or appraise evidence as it would amount to pre-judging the issue. 'evidence' as used in section 319 means evidence recorded during course of inquiry or trial. statements recorded by police, and interrogation by investigator does not constitute evidence. for the purpose of section 319, neither statements under section 161 of the code recorded by investigator nor those recorded under section 164 can be treated as evidence. 5. in municipal corporation of delhi v. ram krishan rohtagi and ors. air 1983 sc 67, it was pointed out by the apex court that section 319 gives ample powers to any court to take cognizance and add any person not being an accused before it and try him along with other accused. if prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arraigned as accused against whom proceedings have been quashed have also committed the offence, court can take cognizance and try them along with other accused. but being really of an extraordinary nature, snaring use is to be made; and that too for compelling reasons. it is designed to meet specific and limited situation of a court discovering in the midst of trial or inquiry that some additional accused should also be tried together with persons already before it. the scope of the section is wide enough to include cases instituted on private complaint. persons who have been discharged under section 245 of the code of all or some of the charges are accused and hence cannot be proceeded against under section 319. once a person is found to have been accused in the case he goes out of the reach of section 319 as the crucial words in the said section are 'any person not being the accused'. whether ha can be dealt with under any other provisions of the code is a different question in case of an accused who has been discharged under the relevant provisions of the code, the nature of finality of such order and the resultant protection of the persons discharged subject to revision under section 398 cannot be lost sight of provisions of section 319 have to be read in consonance with the provisions of section 398. (see sohan lal and ors. v. state of rajasthan: air 1990 sc 2168). 6. in the case at hand, the stage of evidence has not come. as rightly pointed out by the learned additional sessions judge if contingency arises for proceeding against any person certainly the court would take appropriate steps at that time. i make it clear that the observations made by the learned additional sessions judge that there was no prima facie case as against opp party nos. 2 to 11 shall not weigh while considering desirability of applying section 319 of the code. whether at any stage evidence warrants addition of a party has to be considered by the court on appreciation of evidence. at an appropriate stage, if circumstances so warrant, it is open to the court to decide whether some persons other than those who have been tried should be brought to trial. the application is accordingly disposed of.