CHANDRABHAN GANPATRAO TALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Few facts need be stated to eventually appreciate the controversy raised by this petition.

(2.) The petitioner Chandrabhan Tale is a civil servant, being a member of the police force and holding the rank of Head-constable with the State of Maharashtra. He was prosecuted for the offences under section 161, Indian Penal Code and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947, in Special Case No. 3 of 1974 in the Court of Special Judge, Wardha. By the eventual judgment made on Jan. 14, 1976, that Court found the petitioner culpable for the offences with which he was charged,and accordingly he stood convicted for those offences. Further he was sentenced to under-go rigorous imprisonment for six months for the offence under section 161, Indian Penal Code and for one year and to pay a fine of Rs. 100 or to undergo in default R. I. for two months for the offence under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act. He preferred an appeal under section 372 of the Code of Criminal Procedure, 1973 in this Court toeing Criminal Appeal No. 30 of 1976. The said appeal was admitted by the learned single Judge on Feb. 20, 1976. The petitioner was on bail during the trial and was allowed to remain on bail for enabling the petitioner to file the appeal and eventually this Court too while admitting the appeal granted him bail on the same terms as in the lower Court. Thus during the trial as well as after conviction and after admission of the appeal, the petitioner continues to be free under the orders of bail and has not been sent to imprisonment.

(3.) It appears that by an order of May 31, 1974, produced at Annexure-A with the petition, the petitioner was put under suspension. By that order the Superintendent of Police, Wardha, the competent authority empowered by rule 151 of Bombay Civil Services Rules, 1959, directed entitlement of the petitioner to the normal allowance during the period he remains under suspension. After the conviction of the petitioner on Jan. 14, 1976, in supersession of the order produced at Annexure-A, the competent authority made another order of date Jan. 22, 1976, produced at Annexure-B, directing that the petitioner during the period of the appeal and from the date of conviction will be entitled to nominal subsistence allowance at rupee one per month. Having received this order, the petitioner moved an application before the learned single Judge of this Court in the said Criminal Appeal No. 30 of 1976 purporting to invoke the inherent jurisdiction of this Court under section 482 of the Code of Criminal Procedure and further praying that to avoid injustice even the sentence imposed on the petitioner be suspended by recourse to the power of this Court under section 389 of that Code. By that application the petitioner further questioned the order produced at Annexure-B, mainly on two grounds-firstly, that the petitioner being on bail was not a person who would be covered by the proviso under which the competent authority purported to act and, secondly, if the proviso were to apply in this manner, the proviso itself is ultra vires of the equal treatment clause enshrined in Art. 16 of the Constitution of India. The learned single Judge before whom the matter came for hearing in Criminal Application No. 146 of 1976 thought that an important question is raised and therefore made an order directing that the matter be placed before the Division Bench of this Court. He also issued notice to the Advocate General as the vires of the proviso in question contained in rule 151 were challenged. After the notice was so served and at the time of hearing, further application was made to this Court to treat this application as having been filed not only under section 482 of the Code of Criminal Procedure but also under Art. 226 of the Constitution of India. For the State and the Advocate General, this prayer to treat the application under Art. 226 of the Constitution was not opposed. Eventually the application has been registered as Special Civil Application concerning criminal matters filed in this Court.