Sudarsan Balabantrai and ors. Vs. State and anr.

Decided On : Mar-11-1992

Court : Orissa

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		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 482',
		'appealno' => 'Criminal Misc. Case No. 1514 of 1991',
		'appellant' => 'Sudarsan Balabantrai and ors.',
		'authreffered' => '',
		'casename' => 'Sudarsan Balabantrai and ors. Vs. State and anr.',
		'casenote' => ' - 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 Magistrate may drop the proceeding if he is satisfied on re-consideration of the accusation, that there is no offence for which the accused can be tried.',
		'caseanalysis' => null,
		'casesref' => 'K. M. Mathew v. State of Kerala and Anr.;',
		'citingcases' => '',
		'counselplain' => 'N. Patra and S.P. Sarangi;Pradeep Mohanty, B.P. Ray and R.K. Dalai',
		'counseldef' => 'J.M. Mohanty, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1992-03-11',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A. Pasayat, J.',
		'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. The petitioners call in question the legality of the order dated 3-1-7-1991 passed by the learned Sub-divisional Judicial Magistrate, Puri (in short, the 'SOM') taking cognizance under various sections of the Indian Penal Code, I860 (in short, IPC) and Under Section 9(b)of the Indian Explosives Act, 1884 (in short the Explosives Act) According to the petitioner, the teamed SDJM was not justified in taking cognizance, much less on the basis of a motion mad by the Investigating Officer, to take cognizance Under Section 307, IPC, This submission is made in Khe background that charge-sheet was submitted Under Sections 336/337/326/34, IPC, and Section 9 (b) of the Explosives Act. It appears that pursuant to the order taking-cognisance, nonbailable warrants of arrest were issued against the petitioners. By order dated 2-12-199'l in Misc. Case No. 463 of 1991, this Court had directed that if the petitioners moved for bail the same was to be considered without taking into consideration the accusation Under Section 307, IPC. It is stated by the learned counsel for' petitioners that the petitioners have been released on baft.</p><p style="text-align: justify;">2. The only question that requires consideration is whether power Under Section 482 of the Code of Criminal Procedure, 1973 (in short, the 'Code') is to be exercised in this case. H has been observed by the apex Court in K. M. Mathew v. State of Kerala and Anr. ; (1992) 1 Section 217 that it is open to an accused to question the legality and propriety of the issue of process. The Magistrate may drop the proceeding if he is satisfied on re-consideration of the accusation, that there is no offence for which the accused can be tried. It is judicial discretion. No specific provision is required for the Magistrate to drop the proceeding or rescind the process. In that view of the matter, it is open to petitioners to move the learned SDJM, Puri to ventilate their grievance about non-applicability of the various provisions under which cognizance has been taken, and non-desirability to proceed against them. If such a motion is made, the learned SDJM shall consider the same in accordance with law. The learned counsel for the State submits that the SDJM may proceed or the basis that offence Under Section 307 is not made out, because of tins order dated 2-12-1991 referred to above. The order dated 2-12-1991 was not passed by this Court in relation to marits of the case. It only permitted the petitioners to move for bail and the learned Magistrate was directed to consider the bail application untrammelled by the allegations Under Section 307, IPC. Since the patitioners have been been released on bail, the non bailable warrants of arrest which have been issued shall not be operative, until the learned SDJM takes up the matter afresh, and after consideration of the motion if any made by the petitioners.</p><p style="text-align: justify;">The criminal misc. case and Misc. Case No. 463 of 1991 are accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1993(I)OLR61',
		'ratiodecidendi' => '',
		'respondent' => 'State and anr.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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LAW: the Indian Penal Code, Section 9(b)of, Indian Explosives Act, the Explosives Act, Section 307, Section 9, the Explosives Act, Section 482, Section 217, Section 307, Section 307

NORP: J.1

CARDINAL: 3-1-7-1991, 2, 463, 1, 2, 2, 463

ORG: Judicial Magistrate, IPC, SDJM, IPC, Khe, IPC, Court, IPC, the apex Court, Magistrate, Magistrate, SDJM, SDJM, State, SDJM, Court, Magistrate, IPC, SDJM

GPE: Puri, Kerala, Puri

DATE: I860, 1884, 1991, 1973, 1992, 1991

PERSON: Misc, K. M. Mathew v. State, Anr, Misc