Muna Mallik Vs. Bishnu Mallik 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. a. pasayat, j.1. order of acquittal dated 7-7-1 992 passed in terms of section 248(1) of the code of criminal procedure, 1973 (in short, (cr pc) by learned judicial magistrate, first class. kendrapara, is the subject-matter of challenge, learned magistrate directed accuittal on the ground that petitioner was unnecessarily prolonging the proceeding, and therefore, the accused-opposite parties are entitled to an order of acquittal. 2. mr. s.k. sahoo, learned counsel for the petitioner attaches vulnerability to the order on the following two grounds: (i) there can be no order of acquittal under section 248(1) cr pc in the circumstances indicated by the learned magistrate; and (ii) there was in fact no dilatory tactics adopted by the petitioner. on the contrary after 8-2-1991, i.e. the date on which charge was framed, petitioner was present on seven occasions with his witness, but the accused took time. therefore, no mala fide intention can be attributed to the petitioner.mr. g.b. dash, learned counsel appearing for the opposite parties, however, supported the order of learned magistrate stating that it is proper in the circumstances of the case.3. coming to the plea of applicability of section 248(1). crpc. a reference to the provision itself is necessary. it reads as follows: '248. acquittal or conviction; (1) if, in any case under this i chapter in which a charge has been framed, the magistrate finds the accused not guilty, he shall record an order of acquittal.'the order of acquittal that can be passed under section 248(1) must be based on the finding that the accused is not guilty. the magistrate cannot acquit the accused merely because the complainant is absent. certain other provisions of the cr pc need to be noticed at this stage. section 239 deals with a situation when accused shall be discharged. 'charge' as used in section 239 is contextually different from its use in section 240. in the former it relates to an allegation or accusation. the word 'discharge' is used in sections 227, 239. 245 and 321. but the use is not in the same sense in all the sections. order of discharge under section 239 does not amount to acquittal as no trial has taken place, and as such fresh trial an be held and cognizance can be taken on basis of fresh material. action under section 239 can be taken by the magistrate, where upon consideration of police report and documents sent with it under section 173, and making such examination, if any of the accused as he thinks necessary and giving the prosecution and accused an opportunity of being heard, he considers the charge against the accused to be groundless. he is required to record reasons as to why he considers it to be so. section 245 which is applicable to warrant cases prescribes a test as to circumstances under which an accused can be discharged in a warrant case instituted other than on a police report. it enjoins that the accused would be entitled to a discharge, if on an examination of the evidence no case is made out which, if unrebutted, would warrant his conviction. order under sub-section (2) can be made at an earlier stage. when the complainant is absent. magistrate can act under the said sub-section. 4. when the magistrate has framed charge, he cannot dismiss a case for default. the only provision which deals with the procedure upon default of. appearance of the complainant in a warrant case is section 249, cr pc which authorises the magistrate, in his discretion, to discharge the accused at any stage before charge is framed if the complainant fails to appear. the magistrate cannot act under that provision when charge has already been framed. in a warrant case instituted otherwise than on a police report, discharge and acquittal of the accused are conceptually different. they are appleable to different stages of the proceeding. the legal effects and incidence of discharge and acquittal also operate in different fields. an order of discharge in a warrant case instituted on complaint can be made only after the process has been issued and before the charge has been framed sub-section (1, of section 245, crpc lays down, as a general rule, that there can be no order of discharge unless the evidence of prosecution witnesses has been taken and the magistrate considers, for reasons to be recorded, that no case against the accused has been made out. the discharge of the accused without considering the evidence of the prosecution witnesses is illegal it a prima facie case is made out, the magistrate is required to proceed and frame charge against the accused. ones the case passes the stage envisaged under section 239 or 245(1) and the magistrate has found the charges to be prima facie substantiated, the accused can be acquitted only under section 248, and for doing so, the magistrate will have to follow the procedure provided in earlier sections of chapter xix cr pc. section 219 provides that an accused may be discharged when the complainant fails to appear, subject to the following conditions, namely, (a) the proceedings must have been instituted upon a complaint, who fails to appear at a stage prior to framing of charge against the accused, and (b) the offence to which proceedings relate can be lawfully compounded or is not cognizable by police. in a case of the nature at hand, the accused may be discharged at any previous stage of the case if, for reasons to be recorded by the magistrate, he considers the charge to be groundless in terms of sub-section (2) of section 245. order of acquittal passed by learned magistrate is misconceived. additionally, as rightly pointed out by learned counsel for petitioner, delay in disposal of the proceeding cannot be attributed to petitioner. on a large number of occasions he was present with his witnesses and the matter was adjourned at the request of the accused-opposite parties. order passed by the learned magistrate cannot be sustained on that score also. it is accordingly set aside. the case shall be taken up afresh for hearing. to avoid unnecessary delay, parties are directed to appear before learned magistrate on 27-9-1994 when he shall fix up a date for further hearing of the matter.the criminal misc. case is disposed of.