Skip to content


In Re: B. Nagabhushanam - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 838 of 1965
Judge
Reported inAIR1966AP72; 1966CriLJ251
ActsConstitution of India - Article 311(2); Hyderabad City Police Act - Sections 70; Code of Criminal Procedure (CrPC) , 1898 - Sections 242 and 243
AppellantIn Re: B. Nagabhushanam
Advocates:M. Sardar Ali Khan, Adv.
DispositionPetition dismissed
Excerpt:
.....act and sections 242 and 243 of criminal procedure code, 1898 - petitioner dismissed on grounds of criminal conviction - writ petition filed against order of dismissal on ground that no formal charge were framed before convicting him - main question to be decided is whether words 'has led to his conviction and criminal charge' under proviso to clause (2) of article 311 would mean that charge should actually have been framed before he is convicted - words 'criminal charge' is more or less criminal accusation - conviction under any act other than penal code are also convictions on criminal charge - no matter whether sentence is in form of fine or imprisonment - held, conviction under section 70 (c) is conviction on criminal charge within meaning of proviso (a) to article 311 (2). - - ..........of article 311 do not apply to the conviction in this case because, he contends, there being no charge framed, the petitioner is not convicted on a criminal charge. the contention is based upon section 242 cr. p. c. which provides that when the accused appears or is brought before the magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted; but it shall not he necessary to frame a formal charge. basing his argument on this section he contends that since no formal charge has been framed and the accused has been convicted on his own admission, it cannot be said that that conviction is on a criminal charge. we cannot accept this contention. the words 'criminal charge'.....
Judgment:

Jaganmohan Reddy, J.

1. In this writ petition the question that has been urged is whether having regard to Proviso (a) to Clause (2) of Article 311 of the Constitution the words 'has led to his conviction and criminal charge' would mean that a charge should actually have been framed before he is convicted. The petitioner is a Lower Division Clerk in the Central Excise Department and was accused under Section 70(c) of me Hyderabad Police Act of accosting a young girl, a student of P. U. C. in the Nizam College on the Prabhat Talkies Road in the following manner 'Hallo Madam, Hallo Madam, will you come?' and started teasing her (ched chad Kiya) in Telugu language causing a breach of peace. To this accusation or charge he pleaded guilty. The IV City Magistrate accepted the plea of guilt entered by the petitioner and sentenced him to a fine of Rs. 10 in default simple imprisonment for two days. After this conviction the Collector, Central Excise has dismissed him by his order dated 26-5-1964. The order dismissing him is as follows:

'Whereas Sri B. Nagabhushanam, Lower Division Clerk, Central Excise Circle Office, Nandyal has been convicted on a criminal charge, to wit, under Section 70(c) of Hyderabad City Police Act;

And whereas, it is considered that the conduct of the said Shri B. Nagabhushanam, Lower Division Clerk, which has led to his conviction, is such as to render his future retention in the Public Service undesirable;

Now therefore the undersigned hereby dismiss the said Sri B. Nagabhushanam, Lower Division Clerk, from service with effect from the date of this order.'

Against this order the petitioner filed an appeal to the Central Board of Excise. While this was pending he filed a writ petition which was admitted and at the time of its final disposal when it was brought to the notice of the Bench that an appeal was pending it was dismissed with an observation that the appellate authority will certainly consider the appeal on its merits in all its aspects. Since the petitioner has not exhausted the remedy by way of appeal which is available to him under the Civil Service Rules, the writ petition was dismissed, It now appears that the Board has dismissed the appeal by an order dated 18-5-1965 communicated on 27-5-1965 by the Collector through C. No. 11/26/21/64. DS.

This writ petition is filed against the order dismissing the appeal. We have obtained from the learned advocate a copy of the charge-sheet and the judgment of the Magistrate in this case to which we have already adverted above, and on a perusal of it there is little doubt in our minds that it is a conviction by a criminal court and it involves moral turpitude. The learned Advocate seeks to have this writ petition admitted on the ground that the words used in proviso (a) to Clause (2) of Article 311 do not apply to the conviction in this case because, he contends, there being no charge framed, the petitioner is not convicted on a criminal charge. The contention is based upon Section 242 Cr. P. C. which provides that when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted; but it shall not he necessary to frame a formal charge. Basing his argument on this section he contends that since no formal charge has been framed and the accused has been convicted on his own admission, it cannot be said that that conviction is on a criminal charge. We cannot accept this contention. The words 'criminal charge' connote nothing more nor less than a criminal accusation. If this were not so, it will lead to startling results in cases where no charge is framed under the Criminal Procedure Code. It may be stated that all offences which are punishable by less than one year have to be tried as summons cases in which no charge need be framed. A charge would only be framed in warrant cases and warrant cases are those under Section 4(w) of the Cr. P. C. relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding one year Apart from this it may be pointed out that Section 242 Cr. P. C. itself says that no formal charge need be framed. But that does not mean that there is no criminal charge against the accused in summons cases. That the word 'charge' is used genetically as meaning an accusation is also clear from a reading of Section 243 in which the word 'accused' has been used where the word 'charged' could also have been used. So in our view there is no substance in the contention that the conviction of the accused under Section 70(c) is not a conviction on a criminal charge.

2. It is again argued that convictions under the Police Act, or for that matter, under any Act other than the Penal Code, are not convictions on a criminal charge. This contention is based on an untenable ground namely that while the Penal Code is the law of the land, the other Acts which prescribed punishment are not so. We fail to understand the significance of the argument because a conviction is nonetheless a conviction and a sentence is nonetheless a sentence either of fine or imprisonment, whether under the Penal Code or under any other Act which is equally the law of the land. If a sentence of fine or imprisonment is not a conviction on a criminal charge, then we fail to understand what other conviction it can be. Certainly it cannot be a civil conviction. We find if difficult to comprehend this proposition. Whenever there is a judgment involving penal consequences such as line or imprisonment, it is a criminal conviction, as there can hardly be any doubt that these arc offences against the State.

The learned Advocate argues that, if this interpretation is given, then every person convicted of even a minor offence, nuisance or cycling offence or motoring offence not involving moral turpitude will be liable to be dismissed without an opportunity being given. That its consequence might be so we are at the present moment not called upon to judge because in this case from the facts themselves it is abundantly clear that the conviction involves moral turpitude. To complain that he has not been given an opportunity at the time of the enquiry is devoid of substance because once he has admitted the facts and stated in the charge against him, there is nothing more to explain. The proviso (a) is an exception to the safeguard afforded in Clause (2) of Article 311 that an opportunity should be given. Even if be is given an opportunity to explain, the authority cannot ignore the conviction or pass any comments thereon. That is the reason why the framers of the Constitution by a proviso took away his right of reasonable opportunity because that opportunity he would have had at the time of his criminal trial or prosecution.

3. Lastly, it has been argued that the orderof the appellate Board is defective as it hasbeen communicated in a confidential memo tothe Collector communication to the petitioner.That the order was intended to be communicatedto the petitioner is not disputed. A confidentialcommunication is communicated to the petitionerto the extent it pertains to him, and such a procedure cannot be said to be defective. Thefact is that the communication was intended tobe communicated to him and in fad was communicated to him. We do not find any defectin the order of the appellate authority. Accordingly this petition is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //