Mohammad Jakaullah Vs. Noor Mohammad Khan 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. - from the above documents i find strong prima facie case against the accused persons under sections 506/34, ipc hence, cognizance taken under sections 506/34 ipc against all the accused person, put up on 25-3-1991 for further orders. 4. the position is well settled that after receipt on the police report after investigation under section 156(3) the magistrate may do one of three things ;(1) decide that there is no sufficient ground for proceeding further and drop action; the state (union territory of chandigarh ). the position has also to be taken as well settled that the magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging- from the investigation and lake cognizance of the case, if he thinks fit, in exercise of his powers under section 190(1)(b) and direct the issue of process to the accused. this court further observed that in case the informant disputes the final report and files a protest petition, it is open to the judicial ,magistrate to consider the materials available in the case diary, as well as protest petition either for the purpose of taking cognizance of the offence or otherwise if such a procedure is permissible, it does not stand to reason that the protest petition when filed though of the nature of complaint petition shall stand completely dissociated from the record of investigation.d.p. mohapatra, j.1. in this application filed under section 482, criminal procedure code, the informant has assailed the revisional order dated 16-1-1992 of the add. sessions judge, bhadrak in criminal revision no. 41 of 1991 quashing the cognizance taken by the sub- divisional judicial magistrate, bhadrak under sections 506/34, ipc in g r. case no. 1060 of 1990.2. the factual backdrop of the case that emerges on perusal of the application and the lower court records, may be shortly stated thus :on the report of the petitioner, the station diary entry bearingo no. 79 of 1990 was made with regard to the occurrence which is alleged to have taken place on 3-6-1990. since the police did not take any action in the matter, the petitioner made a complaint before the learned s. d. j. m., bhadrak who sent it to the police for investigation under section 156(3) cr. p. c. on investigation the police submitted final form under section 73 cr. p. c. the learned magistrate registered g. r. case no. 1060 of 1990 and by order dated 14-11-1990 directed issue of notice to the informant for appearance. thereafter a petition was filed by the informant requesting the magistrate not to accept the final report on which the learned magistrate by his order dated 15-12-1990 called for the case diary from the investigating officer and posted the case to 15-2-1991 for consideration of the protest petition. a petition was filed by the advocate appearing for the informant to record the statement of some of the witnesses named in the complaint petition under section 164 cr. p. c. the learned s. d. j. m. directed the judicial magistrate, 1st class, to record 164 statements of the pws. the 164 statements of the witnesses were duly recorded by the judicial magistrate, 1st class on 20-3-1991 and the case record was sent to the s. d. j. m. thereafter by order dated 22-3-1991, the learned s. d. j. m. took cognizance of the offence under sections 506/34 ip c follows: 'perused the fir, c. d. and statements of witness , recorded under section 164, cr. p.c. and also perused the protest petition filed by the informant. from the above documents i find strong prima facie case against the accused persons under sections 506/34, ipc hence, cognizance taken under sections 506/34 ipc against all the accused person, put up on 25-3-1991 for further orders.'3. agaist the cognizance order passed by the learned s. d.j. m. the accused persons filed criminal revision no. 41 of 1991 which was disposed of by the learned addl. session judge by the impugned order. the revision court allowed the revision petition and set aside the cognizance order.on perusal of the order it appear that the learned addl. session judge after taking note of the three alternative courses which were available the magistetate on receiving the police report under section 173(1) cr.p.c. held that the learned magistrate had taken cognizance of the offence under section 190(1)(a) cr.p.c. on the the basis of the orginal complaint without following the procedure prescribed under cognizance order was vitiated. he expressed his view in the following words:'after receiving the final report the court did not take cognizance- then and there as stated above in the second alternative. had he taken cognizance immediately after receiving the final report, the contention of the opposite parties could have been accepted. mere the s.d.j.m. resorted the chapter xv which comes under third category of recourse mentioned above. but proper procedures have not been folowed by the s.d.j.m. as without examining the complaint himself and conducting enquiry he sent the case to another magistrate for recording statements of witnesses under section 164 cr.p.c. which is not an enquiry he sent the case under section 202,cr.p.c. and just after receiving record, he took cognizance of the offence against the petitioner on 22-3-1991 making the under section 164 cr.p.c. satatement as its basis.4. the position is well settled that after receipt on the police report after investigation under section 156(3) the magistrate may do one of three things ; (1) decide that there is no sufficient ground for proceeding further and drop action; (2) take is no sufficient ground for under section 190(1)(b) on the basis of the police report without being bound in any manner by the conclusion of the police report and issue process; (3) take cognizance under section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses. (see air 1980 sc 1883 m. s. bains v. the state (union territory of chandigarh ).the position has also to be taken as well settled that the magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging- from the investigation and lake cognizance of the case, if he thinks fit, in exercise of his powers under section 190(1)(b) and direct the issue of process to the accused. the magistrate is not bound in such a situation to follow the procedure laid down in sections 200 and 202 of the code for taking cognizance of a case under sac. 190(1) (a) though it is open to him to act under section 200 or section 202 also. (see air 1989 sc 885 (m/s. india carat pvt. ltd. v. state of karnataka and anr.).5. indeed, learned addl. sessions judge has indica'ed the position in paragraph 4 of his order. therefore the question that arises for consideration is whether the learned magistrate passed the cognizance order on the basis of the report submitted by the police under section 173(1), cr. p. c. on the basis of the original complaint. concedediy the seamed magistrate on receiving the complaint from the informant, directed an investigation by the police and in pursuance of the said order the police investigated into the case and submitted its report under section 173(2) cr. p. c, stating the case to be a false one. on receipt of the said report the learned magistrate issued notice to the informant, who filed a protest petition urging him not to accept the final report submitted by the police. before taking a decision in the matter on the prayer of the informant to record the statements of some of the pws under section 164 cr, p.c, the teamed s. d.j. m. directed the judicial magistrate, 1st class to record the statements which the latter complied. thereafter on consideration of the police report, the protest petition, the papers available in the case diary and the statements recorded under section 164, cr. p. c. the learned magistrate passed the cognizance order. from the case record there is no indication ' whatso-ever that the learned magistrate at any stage considered the proceeding to be one based on the complaint petition filed by the informant.6. the quesion that rerriains to be considered is whether it can be said that the learned magistrate took recourse to section 190(1)(a), simply because he considered the statements recorded under section 164 cr.p.c. in my view, the answer will be in the negative. to hold otherwise, will be to take too technical a view of the matter. if on receipt of the final report under section 173(2), the magistrate disagrees with the opinion of the police which he is entitled to do, it is open to him to direct the police to make further investigation under section 156(3) cr.p.c and he may also hold enquiry or get it held by any other subordinate magistrate for taking cognizance under section 190(1)(b) (see air 1967 patna 416 parncham singh v. the state and air 1978 patna 298 (special bench) kuli singh and ors. v. the state of bihar and ors. .) in that view of the matter it will not be correct to say that the learned magistrate did not take cognizance under section 190(1)(b) merely because he considered the statements recorded under sec 164 cr.pc. further, cognizance order reveals that the learned magistrate has not based his order merely on 164 statements, but has considered other materials available in the case diary and also the protest petition filed by the informant- it is therefore clear that he took cognizance of the offence upon the police report as provided under section 190(1)(b) and not upon the complaint petition under section 190(1)(a). in this connection it will be helpful to refer to the decision of this court in the case of the district manager, food corporation of india, titilagarh v. jayashankar mund and anr., reported in 67 (1989) c.l.t. 426 wherein it was observed that even though a protest petition is in the nature of a complaint, it is referable to the investigation already held by the vigilance police culminating in the final report and because the informant was not examined on solemn affirmation under section 202 of the code, thereby no illegality or prejudice was caused to the accused. if such a view is accepted and there is no reason why such a view should not be accepted, the necessary consequence in this particular case shall be that the protest petition which is of the nature of a complaint petition filed by the petitioner shall be in continuation and in' respect of the case. instituted and investigated by the vigilance police. this court further observed that in case the informant disputes the final report and files a protest petition, it is open to the judicial , magistrate to consider the materials available in the case diary, as well as protest petition either for the purpose of taking cognizance of the offence or otherwise if such a procedure is permissible, it does not stand to reason that the protest petition when filed though of the nature of complaint petition shall stand completely dissociated from the record of investigation. on other hand, both have to- be considered in harmony so that as a first step to find out truth the court will enable itself to take cognizance of the offence.this position was considered by the division bench of this court to which i was a party, in the case of srinibas balbantaray v. addl. sessions judge, koraput, jeypore and anr., reported in 1990 (i) olr 179, 69 (1990) clt 175, in which similar view has been taken.8. on the discussions in the foregoing paragraphs, i unhesitatingly hold that the addl. sessions judge has erred in setting aside the cognizance order passed by the sub-divisional judicial magistrate. accordingly, this application is allowed ; the revisional order passed on 16-1-92 by the learned addl. sessions judge in criminal revision no. 41 of 1991 is set aside and the learned sub-divisional judicial magistrate, bhadrak is directed to proceed with g.r. case no. 1060 of 1990 in accordance with law.