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S. Mohan Rao Vs. Bhubaneswar Rath - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 363 of 1981
Judge
Reported in58(1984)CLT385; 1984(II)OLR1083
ActsIndian Penal Code (IPC) - Sections 504
AppellantS. Mohan Rao
RespondentBhubaneswar Rath
Appellant AdvocateP.K. Misra, ; B. Panda, ; Kishore Jena and ; J. Rout
Respondent AdvocateGaneswar Rath, ; P.K. Rath and ; D.P. Sahoo
DispositionPetition allowed
Cases ReferredKhaili and Ors. v. State of Uttar Pradesh
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. before i close, i would like to record an observation made by the supreme court in the case of khaili and ors......of the case as i propose to allow the revision and remit the appeal to be heard afresh by the learned sessions judge, puri, for the reasons to follow, as agreed to by the learned counsel for both the sides.2. the learned counsel for the appellant had appeared on the previous dates of the hearing of the appeal in the appellate court, but on august 12, 1981, owing to circumstances beyond his control, he could not appear in time in the court. the learned sessions judge heard the appeal in the initial hours of that day with the assistance of the learned counsel appearing for the respondent and dictated the judgment in the open court dismissing the appeal with reduction in the sentence imposed on the petitioner. later on the same day, the learned counsel for the appellant appeared and.....
Judgment:

B.K. Behera, J.

1. The petitioner assails the order of conviction recorded against him by the trial Court and maintained by the appellate Court under Section 504 of the Indian Penal Code. I do not feel myself called upon to go into the facts and the merits of the case as I propose to allow the revision and remit the appeal to be heard afresh by the learned Sessions Judge, Puri, for the reasons to follow, as agreed to by the learned counsel for both the sides.

2. The learned counsel for the appellant had appeared on the previous dates of the hearing of the appeal in the appellate Court, but on August 12, 1981, owing to circumstances beyond his control, he could not appear in time in the Court. The learned Sessions Judge heard the appeal in the initial hours of that day with the assistance of the learned counsel appearing for the respondent and dictated the judgment in the open Court dismissing the appeal with reduction in the sentence imposed on the petitioner. Later on the same day, the learned counsel for the appellant appeared and made an application for rehearing the appeal stating the grounds as to how he could not appear in the Court in time. As the judgment had been dictated in the open Court, the learned Sessions Judge could do nothing in the matter and he rightly observed that he had no power to reopen the hearing of the appeal as he had become functus officio. As has been urged by Mr. P. K. Misra for the petitioner and fairly submitted by Mr. D. P. Sahoo for the opposite party, it would be just and reasonable, in my view, to direct a re-hearing of the appeal.

3. I would allow the revision, set aside the appellate judgment and order and direct the learned Sessions Judge, Puri, to hear and dispose of the appeal in accordance with law. The learned counsel for both the sides have agreed that appropriate steps shall be taken for appearance of the parties before the learned Sessions Judge on October 31, 1984, on which day the learned Sessions Judge shall fix a date of hearing.

4. Before I close, I would like to record an observation made by the Supreme Court in the case of Khaili and Ors. v. State of Uttar Pradesh, 1982 Supreme Court Cases (Cr.) 143 to the effect that howsoever diligent the learned Judge may be and however careful and anxious he may be to protect the interests of the appellants in the absence of their counsel, his effort cannot take the place of an argument by an Advocate appearing on behalf of the appellants and in such a case, if an Advocate appearing for the appellants does not attend the Court and does not argue, the appellate Judge should appoint an Advocate amicus curiae and then proceed to dispose of the appeal on merits.


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