| SooperKanoon Citation | sooperkanoon.com/534546 |
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.
- before answering the reference, it is necessary to see whether the reference itself is competent, section 395 cr pc reacts as follows :395. reference to high court-(1) where any court is satisfied that a case pending before it involves a question as to the validity of any act, ordinance or regulation or of any provision contained in an act, ordinance or regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such act, ordinance, regulation or provision is invalid or inoperative, but has not been so declared by the high court to which that court is subordinate or by the supreme court, the court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the high court. sub-section (1) provides for reference to the high court by any court when it ts satisfied that a case pending before it involves a substantial question as to the validity of any act, ordinance or regulation or of any provision contained therein, determination of which is necessary for disposal of the case.a. pasayat, j.1. this is a reference by learned chief judicial magistrate, puri (in short, 'cjm' under section 395 of the code of criminal procedure. 1973 (in short, 'cr pc).2. the background in which reference has been made is as follows :during inspection of the court of judicial magistrate, first class, daspalla it was noticed by learned cjm that in 2 (a) cc case nos. 5 and 14 of 1986, prosecution report was submitted by the sub-inspector of excise, under section 9(a) of opium act, 1878 along with 47 (a), bihar and orissa excise act. 1915. cognizance was taken accordingly, and copies of prosecution report was supplied, and cases were posted for examination of witnesses before charge. in both the cases, several witnesses were examined and cross-examined before charge and 2(a) cc case 5 of 1986 was posted to 1-2-1987, and 2(a) cc case 14 of 1986 was posted to 18-8-1987 for consideration of charge. learned cjm was of the view that after narcotic drugs and psychotropic substances act, 1985 (in short, 'the act') has come into force with effect from 14-11-1985 and the opium acts of 1857 and 1878 stood repealed in view of section 82(1) of the act, no action could have been taken or can be taken under any of the provisions of the opium acts which have been repeated. he was of the further view that s.i. of excise had no authority to submit prosecution report. he therefore, referred two points for decision of this court:(i) can the officers of the excise department submit pr under the provisions of the narcotic drugs and psychotropic substances act, 1985 without the authority of the state government ?(ii) can the action taken in the aforesaid two cases by the judicial magistrate, first class, daspalla be held as valid.?3. heard learned counsel for state and opposite parties-accused persons. reference has been made under section 395, crpc which corresponds to section 432 of the 1898 code. before answering the reference, it is necessary to see whether the reference itself is competent, section 395 cr pc reacts as follows :'395. reference to high court-(1) where any court is satisfied that a case pending before it involves a question as to the validity of any act, ordinance or regulation or of any provision contained in an act, ordinance or regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such act, ordinance, regulation or provision is invalid or inoperative, but has not been so declared by the high court to which that court is subordinate or by the supreme court, the court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the high court.explanation-in this section, 'regulation' means any regulation as defined in the general clauses act, 1897 (10 of 1897) or in the general clauses act of a state.(2) a court of session or a metropolitan magistrate may, if it or he thinks fit in any case pending before it or him to which the provisions of sub-section (1) do not apply, refer for the decision of the high court any question of law arising in the hearing of such case.(3) any court making a reference to the high court under sub sectopm (1) or sub-section (2) may, pending the decision of the high court thereon, either commit the accused to jail or release him on bail to appear when called upon.it deals with jurisdiction called 'reference' it can be invoked by a court or a metropolitan magistrate. in both cases, reference can be made only on the validity of any act or any provisions thereof or on the question of law and must arise in the hearing of a case. the scope and effect of section 395 cr pc and article 228 of the constitution of india are not the same. they do not cover the same ground and one does not necesarily control the other. in one sense, section 395 is wider than article 228 in its effect, because the latter relates to a case involving a substantial question of law as to the interpretation of the constitution whereas the former is not so confined. secondly; the former comes into operation when a court is of the opinion that an act, ordinance, regulation etc. is invalid or inoperative, but has not been so declared by the high court or by the supreme court. but a reference does not come within the meaning of section 395 if the magistrate has not given his own opinion. sub-section (1) provides for reference to the high court by any court when it ts satisfied that a case pending before it involves a substantial question as to the validity of any act, ordinance or regulation or of any provision contained therein, determination of which is necessary for disposal of the case. the court making the reference must express an opinion that the impugned act, ordinance or regulation is invalid or inoperative to attract operation of sub-section (1). provisions of sub-section (1) are comparatively limited in their operation. it is only when the question as to the validity of any act. ordinance or regulation or any of the provisions contained in such act, ordinance or regulation needs determination for disposal of case and the court is of the opinion that such act, ordinance of regulation etc, is invalid or inoperative but has not been so declared by the high court or the supreme court reference can be made. under sub-section (2) a court of session or metropolitan magistrate may, if it or he thinks fit in any case pending before it or him to which provisions of sub-section (1) do not apply, refer for the decision of the high court any question of law arising in the hearing of such case. section 395 comes into play when a question of law arises in a case pending before the court of session or a metropolitan magistrate and either case it is he who finds himself unable to decide that question or it or he thinks that the matter is so important that the opinion of the high court should be obtained thereon. when it is a case covered under sub-section (1) or sub-section (2) of 395 cr p c. reference can only be made by a court before which a case is pending. in the case at hand, no case was pending before learned c.j.m. therefore, reference is incompetent and i decline to answer the reference.4. but further question that remains is whether the view passed by the learned c.j. m. regarding validity of the action taken by learned j.m.f.c., daspalla is correct. position of law relating to submission of prosecution report under the act by an official of the excise department has been indicated by the apex court in raj kumar karwal v. union of india and ors., air 1991 sc 45. the relevant portion of the judgment reads as follows ;'xxxx this clause (a) of section 36-a(1) makes it clear that if the investigation is conducted by the police, it would conclude in a police report but if the investigation is made by an officer of any other department including the d.r.i. the special court would take cognisance of the offence upon a formal complaint made by such authorised officer the concerned government needless to say that such complaint would have to be under section 190 of the code. this clause, in our view, clinches the matter. we must, therefore, negative the contention that an officer appointed under section 53 of the act, other than a police officer, is entitled to exercise all the powers under chapter xiii of the code, including the power to submit a report or charge- sheet under section 173 of the code. that being so, the case does not satisfy the ratio of badku joti svant and subsequent decisions referred to earlier.'so far as opium act, 1857 and 1878 are concerned, they have been repealed after coming into force of the act with effect from 4-11-1985 i.e. the date appointed by the central government as per section 1(3) of the act in terms of section 82(1) of the act. learned j.m.f.c. was not justified in taking action under the provisions of the repeated acts.the matter may be placed before hon'ble the chief justice to decide whether suo motu revisional power needs to be exercised
Judgment:A. Pasayat, J.
1. This is a reference by learned Chief Judicial Magistrate, Puri (in short, 'CJM' Under Section 395 of the Code of Criminal Procedure. 1973 (in short, 'Cr PC).
2. The background in which reference has been made is as follows :
During inspection of the Court of Judicial Magistrate, First Class, Daspalla it was noticed by learned CJM that in 2 (a) CC Case Nos. 5 and 14 of 1986, prosecution report was submitted by the Sub-Inspector of Excise, Under Section 9(a) of Opium Act, 1878 along with 47 (a), Bihar and Orissa Excise Act. 1915. Cognizance was taken accordingly, and copies of prosecution report was supplied, and cases were posted for examination of witnesses before charge. In both the cases, several witnesses were examined and cross-examined before charge and 2(a) CC Case 5 of 1986 was posted to 1-2-1987, and 2(a) CC Case 14 of 1986 was posted to 18-8-1987 for consideration of charge. Learned CJM was of the view that after Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'the Act') has come into force with effect from 14-11-1985 and the Opium Acts of 1857 and 1878 stood repealed in view of Section 82(1) of the Act, no action could have been taken or can be taken under any of the provisions of the Opium Acts which have been repeated. He was of the further view that S.I. of Excise had no authority to submit prosecution report. He therefore, referred two points for decision of this Court:
(i) Can the Officers of the Excise Department submit PR under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 without the authority of the State Government ?
(ii) Can the action taken in the aforesaid two cases by the Judicial Magistrate, First Class, Daspalla be held as valid.?
3. Heard learned counsel for State and opposite parties-accused persons. Reference has been made Under Section 395, CrPC which corresponds to Section 432 of the 1898 Code. Before answering the reference, it is necessary to see whether the reference itself is competent, Section 395 Cr PC reacts as follows :
'395. Reference to High Court-(1) Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court.
Explanation-In this section, 'Regulation' means any Regulation as defined in the General Clauses Act, 1897 (10 of 1897) or in the General Clauses Act of a State.
(2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him to which the provisions of Sub-section (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case.
(3) Any Court making a reference to the High Court under Sub sectopm (1) or Sub-section (2) may, pending the decision of the High Court thereon, either commit the accused to jail or release him on bail to appear when called upon.
It deals with jurisdiction called 'Reference' It can be invoked by a Court or a Metropolitan Magistrate. In both cases, reference can be made only on the validity of any Act or any provisions thereof or on the question of law and must arise in the hearing of a case. The scope and effect of Section 395 Cr PC and Article 228 of the Constitution of India are not the same. They do not cover the same ground and one does not necesarily control the other. In one sense, Section 395 is wider than Article 228 in its effect, because the latter relates to a case involving a substantial question of law as to the interpretation of the Constitution whereas the former is not so confined. Secondly; the former comes into operation when a Court is of the opinion that an Act, Ordinance, Regulation etc. is invalid or inoperative, but has not been so declared by the High Court or by the Supreme Court. But a reference does not come within the meaning of Section 395 if the Magistrate has not given his own opinion. Sub-section (1) provides for reference to the High Court by any Court when it ts satisfied that a case pending before it involves a substantial question as to the validity of any Act, Ordinance or Regulation or of any provision contained therein, determination of which is necessary for disposal of the case. The Court making the reference must express an opinion that the impugned Act, Ordinance or Regulation is invalid or inoperative to attract operation of Sub-section (1). Provisions of Sub-section (1) are comparatively limited in their operation. It is only when the question as to the validity of any Act. Ordinance or Regulation or any of the provisions contained in such Act, Ordinance or Regulation needs determination for disposal of case and the Court is of the opinion that such Act, Ordinance of Regulation etc, is invalid or inoperative but has not been so declared by the High Court or the Supreme Court reference can be made. Under Sub-section (2) a Court of Session or Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him to which provisions of Sub-section (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case. Section 395 comes into play when a question of law arises in a case pending before the Court of Session or a Metropolitan Magistrate and either case it is he who finds himself unable to decide that question or it or he thinks that the matter is so important that the opinion of the High Court should be obtained thereon. When it is a case covered under Sub-section (1) or Sub-section (2) of 395 Cr P C. reference can only be made by a Court before which a case is pending. In the case at hand, no case was pending before learned C.J.M. Therefore, reference is incompetent and I decline to answer the reference.
4. But further question that remains is whether the view passed by the learned C.J. M. regarding validity of the action taken by learned J.M.F.C., Daspalla is correct. Position of law relating to submission of prosecution report under the Act by an official of the Excise Department has been indicated by the Apex Court in Raj Kumar Karwal v. Union of India and Ors., AIR 1991 SC 45. The relevant portion of the judgment reads as follows ;
'xxxx This Clause (a) of Section 36-A(1) makes it clear that if the investigation is conducted by the police, it would conclude in a police report but if the investigation is made by an officer of any other department including the D.R.I. the Special Court would take cognisance of the offence upon a formal complaint made by such authorised officer the concerned Government needless to say that such complaint would have to be Under Section 190 of the Code. This clause, in our view, clinches the matter. We must, therefore, negative the contention that an officer appointed Under Section 53 of the Act, other than a police officer, is entitled to exercise all the powers under Chapter XIII of the Code, including the power to submit a report or charge- sheet under Section 173 of the Code. That being so, the case does not satisfy the ratio of Badku Joti Svant and subsequent decisions referred to earlier.'
So far as Opium Act, 1857 and 1878 are concerned, they have been repealed after coming into force of the Act with effect from 4-11-1985 i.e. the date appointed by the Central Government as per Section 1(3) of the Act in terms of Section 82(1) of the Act. Learned J.M.F.C. was not justified in taking action under the provisions of the repeated Acts.
The matter may be placed before Hon'ble the Chief Justice to decide whether suo motu revisional power needs to be exercised