P.K. Sarangi Vs. State of Orissa 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. - 'the object of the law is clear that the earliest information should be communicated by those who are in the best position to obtain the same or who from their connection with the land, are in some authority and should accordingly be made responsible for this duty. compliance with the provisions of section 195 is a condition precedent to the court assuming jurisdiction and failure to comply with those provisions would vitiate the entire trial as without jurisdiction. this section imposes a definite bar which cannot be ignored or waived any more than the prohibitions contained in provisions like sections 132 and 197 and just as the sections provided for in those sections cannot be given by any authority save the ones specified so here only the authorities mentioned in section 195(1) (a) and (b) can remove the bar and make the complaint. in the course of trial latter has to be applied if me conditions specified therein are satisfied. it mentions the offence of which every person is bound to give an information to the nearest magistrate or police officer, and his failure to do so is made punishable under section 202 ipc intentional omission is made culpable.a. pasayat, j.1. petitioner calls in question legality of order dated 11-3-1992 passed by judicial magistrate first class bhawani-patna taking, cognizance of offences punishable under sections 176 and 202 of the indian penal code, 1860 (in short ipc) and directing issue of notice to him to face trial. action was taken on the purported exercise of power conferred under section 319 of the code of criminal procedure, 1973 (in short, the code on the basis of an application filed by one uma sankar mund (opp. party no. 2) (hereinafter referred to as the accused petitioner's application for revision of the order before learned sessions judge kalahandi bhawanipatna did not bring any relief and thereafter this application has been filed.2. background facts sans unnecessary details are as follows : petitioner while working as project manager in kalahandi utilisation division of similipahar forest development corporation ltd. (in short, 'corporation' ) detected certain forgeries and misappropriation. on the allegation that there was over-payment to the extent of rs. 57,402.43 to one karam chand sarma of lanjigad, petitioner asked said sri sarma to refund the amount. in response to the letter dated 26-12-1987 sri sarma replied that he had neither submitted any revised bill nor received any amount. being of the view that bills were prepared by accused uma sankar mund, junior clerk of the office and signatures were forged, information was lodged with officer-in-charge, town p. s. bhawanipatna. investigation was under taken charge-sheet was submitted and accused faced trial. during trial it appeared that amount in question had been refunded subsequent to query by petitioner. accused made a grievance that factum of payment was not intimated to the police or to the corporation authorities. a departmental proceeding was pending against accused in the petition styled as under section 319 of the code, accused alleged that material facts were intentionally omitted to be mentioned. omission to implead the then accountant as an accused was also an infraction. it was pleaded that petitioner had committed offence punishable under sections 176 and 202 ipc for such omission and was to be proceeded against in terms of section 319 of the code. such prayer found acceptance by (earned magistrate, who took cognizance and directed issuance of notice to petitioner as indicated above according to petitioner, there was no omission and relevant information was given to the appropriate authorities. the plea having not found acceptance by courts below, petition under consideration has been filed. 3. though several factual controversies were raised by learned counsel for petitioner i find it unnecessary to deal with them the first question is whether cognizance as taken has any foundation. section 176, ipc deals with omission to give notice or information to the public servant, by person who is legally bound to do it. an omission postulates legal obligation and knowledge lot there can be no omission when there is no obligation and knowledge. the notice or information contemplated in section 176 is naturally notice or information of a definite character, having a credible origin and such as may probably be conducive to the apprehension of the criminal or prevention of crime the action does not refer to vague floating gossips in which every market abounds. as princep. j. remarked in a case. 'the object of the law is clear that the earliest information should be communicated by those who are in the best position to obtain the same or who from their connection with the land, are in some authority and should accordingly be made responsible for this duty. obligation to assist public servant has to some extent been cast upon the public in certain cases, and where it is so, it becomes a public duty, dereliction of which is punishable as a crime. no cognizance of an offence punishable under section 176, ipc can be taken without complaint in writing of the public servant concerned or of some other public servants to whom he is administratively subordinate. ' this position is clear from a bare reading of section 195 of the code. section 175, ipc has nothing whatever to do with the conduct of accused, persons in court. they cannot be prosecuted under this section if they refuse to reply to questions put to them by court. the points requiring proof are ; (i) that the accused was under legal obligation to furnish information to any public servant. (ii) that he omitted to furnish it. (iii) that his omission was intentional. to the above three conditions may be added the following aggravating circumstances viz: (a) that the notice of information was as regards the commission of offence ; or (b) was required for the purpose of preventing the commission of offence ; or (c) for the apprehension of an offender.4. admittedly, in the case in hand no complaint has been made by the concerned public servant or some other public servant to whom he is administratively subordinate as required under section 195 of the code. it is one of the sections which prohibits court from taking cognizance of certain offences unless, and until a complaint has been made by some particular authority or person. other sections dealing with similar matter are sections 196 to 199 of the code. however they do not lay down any rule of procedure. they only create bar and say that unless some requirement has been complied with no court, shall take cognizance of offences described in those sections. these sections regulate the competence of the court and bar its jurisdiction . in certain cases excepting in compliance therewith. but section 190 does not. the scope of this section as regards making of complaints is not restricted to the courts detailed in section 340. the section creates an absolute bar against the court taking seisin of the case except in the manner provided by this section. (see doulat ram v. state of punjab air 1962 sc 1206). as section 195 of the code bars the jurisdiction of the magistrate to take cognizance, if he does take cognizance against the provisions of the said section, the cognizance would be illegal and without jurisdiction and if taking of cognizance is illegal, even the subsequent commitment order in the case would be liable to be quashed. this section has been enacted as a safeguard against irresponsible and reckless prosecutions by private individuals in respect of offences which relate to the administration of justice and contempt of lawful authority. the object of the section is to minimise the possibility of needless harassment of litigants by rash. useless or vexatious prosecutions at the instance of their opponents as sections. 195 and 343 now stand, it is clear that they must be read together. sub- section (i) lays down a bar to the cognizance of certain offences. chapter xxvi lays down the procedure for cases mentioned in this section but it has no application to the proceedings taken under clause (a). that chapter only relates to the prosecutions started under clause (b) of sub section (1) of section 195. section 343 lays down the procedure as to how the bar imposed by sub- section (1) of clause (b) of section 195 is to be removed where therefore there is no bar created by that clause. section 343 has no operation nor does the section as it now stands, apply to offences referred to in section 195 sub. section (1), clause (a) with regard to which the complaint is to be by the public servant concerned and not by a court sub- section (1). clause (b) (ii) bars the cognizance of offence of forgery and certain connected offences, when the offence is committed by a party to the proceeding or any person who is not a party to any proceeding in court sections 193, 195 to 199 regulate the competence of the court and bar its jurisdiction in certain cases excepting in compliance therewith. compliance with the provisions of section 195 is a condition precedent to the court assuming jurisdiction and failure to comply with those provisions would vitiate the entire trial as without jurisdiction. this section imposes a definite bar which cannot be ignored or waived any more than the prohibitions contained in provisions like sections 132 and 197 and just as the sections provided for in those sections cannot be given by any authority save the ones specified so here only the authorities mentioned in section 195(1) (a) and (b) can remove the bar and make the complaint. the legislature has provided a condition precedent to the exercise of jurisdiction by a court and the condition precedent must be strictly complied with. 5. according to mr. misra for the state, action having been taken under section 319 of the code, provisions of section 195 have no application. there can be no dispute that provisions of section 319 and those relating to taking of cognizance as appearing in chapter xxiv of the code operate in different fields. under- section 319(1) of the code court has jurisdiction to. proceed against person for the offence which he appears to have committed if in course of any inquiry into or trial of, an offence it appears from the evidence that such person not being the with the accused any offence for which he could be tried together with the accused and under section 319(2) where such person is not attending the court, he may be arrested or summoned, as the instances of the case may require and under section 319(4)(b) where the court proceeds against any person under sub- section (1) then the case may proceed as if such person had been an accused when the court took cognizance of the offence upon which enquiry or trial was commenced. section 190(1) of the code provides for cognizance being taken of an fence and not any particular person accused of having committed the same where cognizance has been taken of the offence the court acquiresm juridiction to proceed against any person who may be suspected of committed it the court necessary, therefore, has power to against any such person at any stage of enquiry or trial. sub- section (i) makes that provision and empowers the court for the offence which he appears to have been committed. that appears to be no doubt that section 319 is self-contained and complete in itself and is quite independent of section 190. and necessarily of section 191. the wording of section 319 which is an enabling section differs materially from section 190 which gives jurisdiction to the magistrate to take cognizance of offence. section 190 and section 319 are distinct. former comes into play at the time of taking cognizance. in the course of trial latter has to be applied if me conditions specified therein are satisfied. section 190 do6s not mention the accused. a magistrate takes cognizance of an offence and not of the offences and therefore a magistrate may add a person or persons to those accused mentioned in the complaint or police report upon which cognizance of offence has been taken by him. if a person is to be added as an accused person is present in the court, the magistrate may act under section 319. but if he is not present, the magistrate may proceed in the ordinary way by issue of summons or warrant. under sub- section (4)(1)(b) of section 319. it is specifically made clear that it will be presumed that the newly added parties had been accused persons when the court took cognizance of the offence upon which enquiry or trial was commenced. this would show that the court had already taken cognizance of the offence and by virtue of sub- section (4)(1) (b) a legal fiction is created that cognizance would be presumed to have been taken as against the newly added accused also. 6. in view of the absolute bar imposed under section 195(1)(a) the enabling provision of section 319 cannot override it. therefore, in the absence of a complaint by the specified persons itself, action could not have been taken. learned counsel for state submitted that though a motion was made by the accused for exercise of power under section 319 of the code, prosecution in respect of infraction could have been done in terms of section 340 of the code. the said provision has no application as it requires that complaint has to be sent to some other court. apart from that both sections 195 and 340 of the code must be read together. jurisdiction of the court to make a complaint under section 340 is limited to cases specified in clause (b) of sub- section, (1) of section 195, and not clause (a). if the offence alleged against a person sought to be prosecuted is one mentioned or specified in clause (a), section 340 has no application. therefore, cognizance in respect of on offence punishable under section 176 is not defensible. 7. so far as offence punishable under section 202, ipc is concerned, it postulates commission of offence, though it does not expressly say so. the provisions of the section are analogous to those of section 176, ipc which is however more general, for, while it relates to the legal obligation to furnish information on any subject, section 202. ipc relates to the commission of an offence. as it is, both the sections have an application limited to the class of persons 'legally bound to-give information. such persons are, for example, the police, village headman, village accountant, owner or occupier of land, etc. as specified in section 40 of the code. the public are 'also under the legal obligation to inform the police regarding the commission of certain offences specified in section 39 of the code. it mentions the offence of which every person is bound to give an information to the nearest magistrate or police officer, and his failure to do so is made punishable under section 202 ipc intentional omission is made culpable. it must be not only an omission, but a willful omission, that is to say, an omission which amounts to suppression due to some ulterior object. section 39 also deals with intention to commit any offence punishable under certain sections of the ipc. omission to give information must be with reasonable cause to avoid culpability. 8. in the case at hand, the learned counsel for the opposite parties conceded that petitioner had given information before the appropriate authority. it is however submitted that the names of proper offenders were not disclosed and therefore section 202, ipc is attracted. the submission, though attractive is not acceptable. a bare reading of the provision makes it clear that obligation mandated in law is omission to give information relating to an offence which has been committed. there is no obligation to inform who is the offender. to indicate that may be proper, but omission to do so does not amount to an offence punishable under section 202, ipc. cognizance of offence relating to that provision is indefensible. 9. order dated 11-3-1992 so far as it relates to cognizance of offences punishable under sections 176 and 202, ipc and directing impletion of petitioner as an accused is set aside. the criminal misc. case is disposed of.