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Jogendra Mohan Panda and anr. Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Misc. Case No. 101 of 1985
Judge
Reported in60(1985)CLT452; 1985(II)OLR601
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 197 and 205
AppellantJogendra Mohan Panda and anr.
RespondentState and anr.
Appellant AdvocateP.V. Ramdas and N.C. Naik
Respondent AdvocateIndrajit Roy, Addl. Govt. Adv. for Opp. party. No. 1
DispositionApplication allowed
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. .....have allegedly commieted the offences while acting in the discharge of their official duties. the learned counsel for both the sides have, however. submitted at the time of hearing that the two petitioners are not such public servants who are not removable from their office save by or with the sanction of the government, section 197 of the code of criminal procedure would apply -,to the case of a public servant removable from his office by the government. the contention raised on behalf of the petitioners with regard to want of sanction cannot, therefore, prevail.4. the learned counsel for the petitioners has submitted that the learned sub divisional judicial magistrate has improperly rejected an application of the petitioners to appear through their counsel under section 205 of the.....
Judgment:

B.K. Behera, J.

1. I have heard the learned counsel for the petitioners and the learned Additional Government Advocate. The complainant-opposite party No. 2 has not appeared in this Court.

2. The petitioners one of them being a Forest Ranger and the other being a Forester, who are deemed to be public servants within the meaning of Section 21 of the Indian Penal Code as provided in Section 78 of the Orissa Forest Act, 1972, seek exercise of inherent jurisdiction by this Court for quashing the criminal proceeding against them under Sections 147, 447, 323 and 379 of the Indian Penal Code.

3. The ground taken by Mr. Rarndas, appearing for the petitioners, is that sanction is necessary for their prosecution, as they have allegedly commieted the offences while acting in the discharge of their official duties. The learned counsel for both the sides have, however. submitted at the time of hearing that the two petitioners are not such public servants who are not removable from their office save by or with the sanction of the Government, Section 197 of the Code of Criminal Procedure would apply -,to the case of a public servant removable from his office by the Government. The contention raised on behalf of the petitioners with regard to want of sanction cannot, therefore, prevail.

4. The learned counsel for the petitioners has submitted that the learned Sub divisional Judicial Magistrate has improperly rejected an application of the petitioners to appear through their counsel under Section 205 of the Code of Criminal Procedure. It would be noticed from the impugned order that without giving any reason therefor, the application has been rejected. This is highly improper. When an application is made under Section 205, it should be allowed or rejected with reasons. Justice must not only be done, but must also appear to have been done. There should be no arbitrary exercise of judicial discretion. The learned Additional Government Advocate has fairly submitted that the two petitioners may be allowed to be represented as provided in Section 205 and they shall appear in the Court in person for the purpose of identification or for other purposes when the Court requiries their personal attendance. I would vacate the impugned order in this regard in the interest of justice and allow the application of the petitioners made under Section 205 of the Code of Criminal Procedure with a direction that they shall appear personally in the Court as and when called upon so to do.

5. The Criminal Miscellaneous Case is accordingly allowed in part.


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