DHANJI RAM SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner was holding the post of a Ticket Collector at Delhi in July 1957 having been appointed originally by the General Manager of the Northern Railway in the year 1950. On 16-4-1954 he was removed from service by the order of the Divisional Commercial superintendent. He challenged the validity of the order of his removal by means of a suit. Shri hukam Chand Goel, Subordinate Judge, Delhi, held in his judgment dated 28-2-1957 that the petitioner had been appointed by the General Manager and he could not have been removed by an officer subordinate to him. The declaratory suit of the petitioner was consequently decreed (vide Annexure 'a' ). He was reinstated in service as a Ticket Collector on 20-7-1957 and resumed duty on that day but simultaneously he was placed under suspension. According to the petitioner, he was suspended by the Station Superintendent and in support of this the petitioner has filed a copy of an order dated 26-11-1957 in which it is to stated (Annexure 'e' ). This fact is, however, not admitted by the respondents as will be presently noticed. The petitioner claims to have filed an application before the Authority appointed under the Payment of Wages Act. It appears that on 4-11-1957 he was served with summons under S. 68 of the code of Criminal Procedure directing him to appear before the Court of Shri Hari Parkash sharma, Magistrate 1st Class, Delhi, on 12-11-1957 to answer a charge of an offence under S. 474 Indian Penal Code, in a criminal complaint "roshan Lal Khanna v. Dhanji Ram Sharma". He appeared in compliance with the summons and executed a bail bound for appearing on such dates as the Court would require him to appear. The order of suspension is challenged by the petitioner on the grounds that he had been suspended in contravention of R. 1711 of the Indian railway Establishment Code, Vol. I, and that his suspension had been ordered by an authority subordinate to the General Manager. (1a) Rule 1711 is in the following terms:

(2.) THE next question is whether the suspension of the petitioner could be ordered under sub-rule (a) of Rule 1711. The crucial words in that rule for the purposes of this case are "when he is arrested or committed to prison pending trial by a Court of law. " Now, it is an admitted fact that although the petitioner was summoned to answer a charge of a complaint under S. 474, indian Penal Code, in the summons he was only required to appear in person before the magistrate. The petitioner did appear before the Magistrate and was released on bail. This happened on 12-11-1957. In Pulin Behari Chakraburty v. The Divisional Superintendent, sealdah, East Indian Rly. , AIR 1953 Cal 45, Bose J. held that this was not tantamount to arrest as all that the Magistrate did was to grant a bail for the purposes of securing the future attendance of the petitioner in Court. A railway servant in that case also had been summoned to answer a charge under Ss. 420/120b, Indian Penal Code, and on the view that he had never been under arrest nor had he been in police custody the order of his suspension was quashed.

(3.) THE learned counsel for the respondents contends that the language employed in S. 497, criminal Procedure Code, is that when the person accused of a non-bailable offence appears before a Court, he shall be released on bail and that the use of the word "release" presupposes arrest. In other words, only that person can be released who has been under arrest or is arrested. Reliance has also been placed on a Full Bench decision of this Court in Amir Chand v. The crown, (1949) 51 Pun LR 330: (AIR 1950 EP 53) in which it was held that the very notion of bail presupposed some form of previous restraint. Therefore, bail could not be granted to a person who had not been arrested and for whose arrest no warrants had been issued. That case, however, related to anticipatory bail and can be of no material assistance in deciding the question that when a person appears in response to a summons to answer a charge of a complaint and execute a bail bond for future appearance in court he can be regarded to have been arrested at any stage prior or subsequent to the grant of the bail. At any rate, even if the contention put forward by the learned counsel for the respondents on this point be assumed to be correct, the order of suspension would still be had as it was made, long before the petitioner was bailed out by the Criminal Court.