Purna Chandra Biswal Vs. Kanhu @ Sudhansu Sekhar Mohapatra and Three 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. - 4. pursuant to order dated 11.9.2009 the petitioner father along with his daughter, namely, sabita (the alleged victim) with her child as well as o. statements as well as the 164, cr. clearly in the absence of counsel appearing for the state, the prosecution has gone totally unrepresented which itself tantamount to violation not only principles of natural justice but also violation of rights of the informants as well as the victim. 8. therefore, on this ground i have no hesitation to quash the impugned order dated 7.7.2008 (annexure-2) and direct the learned ad hoc assistant sessions judge, balasore to hear the application for discharge afresh by fixing an appropriate date after issuing notice to both state as well as the accused.orderindrajit mahanty, j.1. heard mr. m.k. das, learned counsel for the petitioner and mr. m. panda on behalf of mr. b. mohanty, learned counsel appearing for the private opposite parties.2. challenge has been made in the present revision to an order dated 7.7.2008 passed by the learned ad hoc a.s.j., balasore in s.t. no. 31 of 2008/94 of 2008 whereby the learned assistant sessions judge was pleased to direct to discharge the accused-petitioners under section 227, cr.p.c.3. learned counsel for the petitioner assails this order, inter alia, on the ground that the impugned order was passed in the absence of any counsel appearing for the state and hence the prosecution has gone un-represented.4. pursuant to order dated 11.9.2009 the petitioner father along with his daughter, namely, sabita (the alleged victim) with her child as well as o.p.-1 kanhu @ sudhansu sekhar mohapatra are present in court in persons.5. it appears that although attempts for settlement were made between the parties, the same did not end in any fruitful result.6. learned counsel for the opposite party strenuously urges that although none appeared for the prosecution on the date on which the impugned order was passed, i.e., on 7.7.2008, yet the trial court perused the ossification test report, 161 cr.p.c. statements as well as the 164, cr.p.c. statement of the informant (alleged victim), and therefore no error has been committed by the learned magistrate by discharging the opposite parties.7. considering the aforesaid facts and the submissions made, i am of the considered view that the learned trial court ought not to have proceeded to dispose of the application for discharge, filed by the accused persons under section 227 cr.p.c. without affording adequate opportunity to the prosecution to place its case. clearly in the absence of counsel appearing for the state, the prosecution has gone totally unrepresented which itself tantamount to violation not only principles of natural justice but also violation of rights of the informants as well as the victim.8. therefore, on this ground i have no hesitation to quash the impugned order dated 7.7.2008 (annexure-2) and direct the learned ad hoc assistant sessions judge, balasore to hear the application for discharge afresh by fixing an appropriate date after issuing notice to both state as well as the accused. it is stated by the learned counsel for opposite party no. 1 that the assertion of the victim that the child borne to her was fathered by o.p.1 kanhu @ sudhansu sekhar mohapatra. in this respect, liberty is also granted to the state and prosecution, if so advised, to move an appropriate application to seek dna test and if such an application is filed by the prosecution, the same shall be considered and disposed of in accordance with law.9. in order to enable the court to proceed with the matter, learned counsel for both the parties are directed to appear before the trial court on 16th november, 2009. the learned counsel for the petitioner is permitted to produce a certified copy of this order before the trial court for necessary compliance.10. with the aforesaid observation and direction, the revision application is disposed of.personal appearance of the parties is dispensed with.urgent certified copy of this order be granted on proper application.

Judgment:
ORDER

Indrajit Mahanty, J.

1. Heard Mr. M.K. Das, learned Counsel for the petitioner and Mr. M. Panda on behalf of Mr. B. Mohanty, learned Counsel appearing for the private opposite parties.

2. Challenge has been made in the present revision to an order dated 7.7.2008 passed by the learned Ad hoc A.S.J., Balasore in S.T. No. 31 of 2008/94 of 2008 whereby the learned Assistant Sessions Judge was pleased to direct to discharge the accused-petitioners under Section 227, Cr.P.C.

3. Learned Counsel for the petitioner assails this order, inter alia, on the ground that the impugned order was passed in the absence of any counsel appearing for the State and hence the prosecution has gone un-represented.

4. Pursuant to order dated 11.9.2009 the petitioner father along with his daughter, namely, Sabita (the alleged victim) with her child as well as O.P.-1 Kanhu @ Sudhansu Sekhar Mohapatra are present in Court in persons.

5. It appears that although attempts for settlement were made between the parties, the same did not end in any fruitful result.

6. Learned Counsel for the opposite party strenuously urges that although none appeared for the prosecution on the date on which the impugned order was passed, i.e., on 7.7.2008, yet the trial Court perused the ossification test report, 161 Cr.P.C. statements as well as the 164, Cr.P.C. statement of the informant (alleged victim), and therefore no error has been committed by the learned Magistrate by discharging the opposite parties.

7. Considering the aforesaid facts and the submissions made, I am of the considered view that the learned trial Court ought not to have proceeded to dispose of the application for discharge, filed by the accused persons under Section 227 Cr.P.C. without affording adequate opportunity to the prosecution to place its case. Clearly in the absence of counsel appearing for the State, the prosecution has gone totally unrepresented which itself tantamount to violation not only principles of natural justice but also violation of rights of the informants as well as the victim.

8. Therefore, on this ground I have no hesitation to quash the impugned order dated 7.7.2008 (Annexure-2) and direct the learned Ad hoc Assistant Sessions Judge, Balasore to hear the application for discharge afresh by fixing an appropriate date after issuing notice to both State as well as the accused. It is stated by the learned Counsel for opposite party No. 1 that the assertion of the victim that the child borne to her was fathered by O.P.1 Kanhu @ Sudhansu Sekhar Mohapatra. In this respect, liberty is also granted to the State and prosecution, if so advised, to move an appropriate application to seek DNA test and if such an application is filed by the prosecution, the same shall be considered and disposed of in accordance with law.

9. In order to enable the Court to proceed with the matter, learned Counsel for both the parties are directed to appear before the trial Court on 16th November, 2009. The learned Counsel for the petitioner is permitted to produce a certified copy of this order before the trial Court for necessary compliance.

10. With the aforesaid observation and direction, the revision application is disposed of.

Personal appearance of the parties is dispensed with.

Urgent certified copy of this order be granted on proper application.