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Orissa High Court Monthly Digest: Citations 1-17

Jyoti Prakash Dutta
3 March 2022 6:12 AM GMT
Orissa High Court Monthly Digest: Citations 1-17
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Nominal Index: Bonod Bihari Sethy v. State of Odisha, 2022 LiveLaw (Ori) 1Dara Singh @ Rabindra Kumar Pal v. State of Orissa, 2022 LiveLaw (Ori) 2Chinmay Mohanty & Anr. v. Bar Council of India & Anr., 2022 LiveLaw (Ori) 3Ashok Kumar Agarwala v. Registrar General of Orissa High Court & Ors., 2022 LiveLaw (Ori) 4Surendra Kumar Sahoo v. State of Odisha, 2022 LiveLaw...

Nominal Index:

  1. Bonod Bihari Sethy v. State of Odisha, 2022 LiveLaw (Ori) 1
  2. Dara Singh @ Rabindra Kumar Pal v. State of Orissa, 2022 LiveLaw (Ori) 2
  3. Chinmay Mohanty & Anr. v. Bar Council of India & Anr., 2022 LiveLaw (Ori) 3
  4. Ashok Kumar Agarwala v. Registrar General of Orissa High Court & Ors., 2022 LiveLaw (Ori) 4
  5. Surendra Kumar Sahoo v. State of Odisha, 2022 LiveLaw (Ori) 5
  6. Ramani Ranjan Mohanty v. W.V. Raja, 2022 LiveLaw (Ori) 6
  7. Kunja Bihari Panda & Ors. v. State of Odisha & Ors., 2022 LiveLaw (Ori) 7
  8. Ashis Ranjan Mohanty (Adv.) v. State of Odisha & Ors., 2022 LiveLaw (Ori) 8
  9. State of Odisha v. Registrar General, Orissa High Court, Cuttack, 2022 LiveLaw (Ori) 9
  10. OWSSB v. Praful Kumar Sethi & Ors, 2022 LiveLaw (Ori) 10
  11. M/s. Cresent Co. v. Commissioner of Income Tax, Sambalpur, 2022 LiveLaw (Ori) 11
  12. Tuku @ Abdul Naim Khan v. State of Odisha, 2022 LiveLaw (Ori) 12
  13. Himansu Sekhar Srichandan v. Sudhir Ranjan Patra & Ors., 2022 LiveLaw (Ori) 13
  14. Smruti Ranjan Mohanty v. State of Odisha, 2022 LiveLaw (Ori) 14
  15. SRB Transport Sambalpur v. Union of India & Ors., 2022 LiveLaw (Ori) 15
  16. Bajaj Finance Ltd v. M/s Ali Agency & Ors., 2022 LiveLaw (Ori) 16
  17. Amar Kumar Behera v. State of Odisha & Ors., 2022 LiveLaw (Ori) 17

Digest of Judgments Reported

1. 'Direct Affront To Right To Speedy Trial': Orissa HC Quashes 'Criminal Intimidation' Case As Police Took 15 Yrs To Complete Probe

Case Title: Bonod Bihari Sethy v. State of Odisha

Citation: 2022 LiveLaw (Ori) 1

Taking into account the inaction of the investigating agency to conclude the investigation in a Criminal Intimidation case for as long as 15 years, the High Court quashed the concerned FIR and the consequent proceedings in the case. A Single Judge Bench of Justice Sashikanta Mishra termed it as a direct affront to the cherished principle of the right to speedy trial ingrained in the provisions of Article 21 of the Constitution of India. The Court held that it can neither be a mute spectator to the whims and fancies of the investigating agency nor be a party to it and asked the higher police authorities to take note of such inaction on the part of the investigating officer(s) and pass appropriate orders to be followed by all concerned so that such incidents don't occur in the future.

2. 'Brutal Attack On A Defenceless Man, No Case For Leniency': Orissa High Court Dismisses Dara Singh's Plea For Reduced Sentence In Murder Case

Case Title: Dara Singh @ Rabindra Kumar Pal v. State of Orissa

Citation: 2022 LiveLaw (Ori) 2

The Court dismissed a petition moved by Dara Singh alias Rabindra Pal Singh seeking modification of his life imprisonment in a case pertaining to the murder of a Muslim trader in Mayurbhanj district in the year 1999. While dismissing the appeal, a Bench comprising Chief Justice S. Muralidhar and Justice B.P. Routray observed,

"It is further submitted that in the meantime the Appellant has already undergone more than 21 years inside the jail custody and considering his long custody, the punishment may be modified to such period undergone. There is no merit in the said submission. Keeping in view the nature of assault, the brutality associated therewith and the circumstances of the crime where no prior enmity existed, and the victim was unarmed and defenceless, there is no case made out for any leniency as far as the sentence is concerned."

3. Orissa High Court Directs State Bar Council To Hold Election Within 6 Weeks On The Basis Of Existing Electoral Roll

Case Title: Chinmay Mohanty & Anr. v. Bar Council of India & Anr.

Citation: 2022 LiveLaw (Ori) 3

The High Court directed the Odisha State Bar Council to hold its 'long overdue' election within 6 weeks on the basis of the existing electoral roll and not to wait for the ongoing verification process of electoral rolls to get completed. The Single Bench of Justice Arindam Sinha was hearing a plea filed by the 2 ex-office bearers of Odisha State Bar Council, who submitted that the State Bar Council conducted its last Council Election in the year 2014, and the tenure of its members expired on 5th May 2019 and thus, they sought a direction for the conduct of the election. Further, referring to Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman, (1985) 4 SCC 689, the Court also stressed that Election laws abhor a vacuum and that there cannot be arrest of the process of election.

4. Orissa High Court Upholds Compulsory Retirement Order Passed Against A Judicial Officer For Being Inefficient

Case Title: Ashok Kumar Agarwala v. Registrar General of Orissa High Court & Ors.

Citation: 2022 LiveLaw (Ori) 4

The High Court dismissed a writ plea filed by a Judicial Officer challenging the order of compulsory retirement passed against him in the year 2012 on account of not possessing the standard efficiency required to discharge the duties of a Judge. While referring to the ruling of the Supreme Court in the case of Rajasthan State Road Transport Corporation v. Babulal Jangir, (2013) 10 SCC 551, the Bench of Chief Justice Dr. S. Muralidhar and Justice B.P. Routray observed that a very limited scope of judicial review is available in cases where an order of compulsory retirement is passed. After giving due consideration to facts and law, the Court consequently held,

"The overall assessment of all the materials including the ratings of performance in the CCRs, the nature of allegations, charges in the pending disciplinary proceeding against him, the report of the review committee, his performance on judicial as well as administrative side, his reputation as such during entire service period are among the several factors considered by the authority before recommending his compulsory retirement. An overall consideration of all those factors, tested on the touchstone of the standard of efficiency of the Petitioner as a Judicial Officer reveals that the decision of authority cannot be said to be as mala fide or arbitrary or based on no evidence."

5. TPCL Is 'Authority' Under Article 226; Electricity Distribution Companies Discharging Public Duty Amenable To Writ Jurisdiction: Orissa High Court

Case Title: Surendra Kumar Sahoo v. State of Odisha

Citation: 2022 LiveLaw (Ori) 5

The Court held that the Tata Power Company Limited ("TPCL") is an "authority" within the meaning of Article 226 of the Constitution of India. Justice B.R Sarangi noted that TPCL although a company has engaged in the distribution of electricity in four distribution areas of the State under different names. It was further noted that its management is also controlled by the State through GRIDCO (Grid Corporation of Odisha). The Court further held that the concept that all public sector undertakings incorporated under the Indian Companies Act or Societies Registration Act or any other Act for answering the description of 'State' must be financed by the Central/State Government and be under its deep and pervasive control has in the past three decades undergone a sea change. The thrust now is not upon the composition of the body but the duties and functions performed by it. The primary question which is required to be posed is whether the body in question exercises "public function".

6. No Appeal Lies U/S 96 & 100 CPC Against A Mere Finding/Observation When The Decree Has Not Gone Against Appellant: Orissa High Court

Case Title: Ramani Ranjan Mohanty v. W.V. Raja

Citation: 2022 LiveLaw (Ori) 6

A Single Judge Bench of Justice Debabrata Dash observed that no appeal lies against a finding / observation when the decree has not gone in any way against the person who has filed the appeal. It held that Sections 96 and 100 of the Code of Civil Procedure provide for appeal against decree and not against judgment. The Court relied upon a previous judgment of the Orissa High Court in Golok Bihari Mohanty v. Umesh Chandra Mohanty & Anr., 2018 (II) CLR 766, to iterate that no appeal lies against a finding. It observed it is settled by the long catena of decisions that to be entitled to file an Appeal, the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree, he is not entitled to file an Appeal. No Appeal lies against a mere finding.

7. Orissa High Court Upholds The Validity Of Odisha Universities (Amendment) Act, 2020

Case Title: Kunja Bihari Panda & Ors. v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 7

The Court while upholding the constitutional validity of the Odisha Universities (Amendment) Act, 2020 held that in the absence of legislation by the central government under Entry 25 List III, the subordinate legislation under Entry 66 List I will have to yield to the plenary jurisdiction of the State Government under List III Entry 25 of the seventh schedule. While dismissing the petition, a Division Bench comprising of Chief Justice Dr. S. Muralidhar and Justice A.K. Mohapatra further held that mere recantation of the expression 'manifest arbitrariness' to assail the validity of the OUA Act will not satisfy the high threshold that the said expression requires. The arbitrariness must be 'demonstrable' and the Petitioners failed to persuade the Court about the 'manifest arbitrariness' of the impugned provisions of the OUA Act.

8. Orissa High Court Issues Directions To Deal With Ever-Growing Stock Of Seized Vehicles & Properties In Police Stations

Case Title: Ashis Ranjan Mohanty (Adv.) v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 8

The Court issued a slew of directions to deal with the ever-growing stock of seized vehicles and other properties in various police stations in the State of Odisha. A Division Bench, comprising of Chief Justice Dr. S. Muralidhar and Justice A.K. Mohapatra, was hearing a Public Interest Litigation filed by a practicing advocate, Ashis Ranjan Mohanty. The Court lamented that despite having clear statutory provisions and multiple judgments of the Apex Court on this aspect, implementation has been minimal in the State. It observed:

"Although there exist statutory provisions in the Cr.P.C. and allied statutes to deal with the problem, and orders have been passed by the Supreme Court for their implementation, very little in actual terms has been done in Odisha to ease the pressure on the police malkhanas and thereby the Courts. This area appears to be by and large a neglected one and warrants immediate attention."

9. Mischief Rule Can't Be Invoked To Read 'Magistrate' As 'Special Court' U/S 52A NDPS Act: Orissa High Court

Case Title: State of Odisha v. Registrar General, Orissa High Court, Cuttack

Citation: 2022 LiveLaw (Ori) 9

A Division Bench of Chief Justice Dr. S. Muralidhar and Justice A.K. Mohapatra held that the legislative intent is clear and in the light of interpretation of Section 52-A(2) to (4) by the Supreme Court in State of Punjab v. Makhan Chand, (2004) 3 SCC 453; Noor Aga v. State of Punjab, (2008) 16 SCC 417; Union of India v. Jarooparam, (2018) 4 SCC 334, there is no scope for invoking 'mischief rule' to read the word 'Magistrate' in the above provision as 'Special Court'. Sections 36-A to 36-C which specify the powers of the Special Judge do not expressly state that such Special Judge can exercise the powers of the Magistrate for the purposes of Section 52-A(2) to (4) of the Act. Therefore, it was held that it is not possible for the Court to direct that the powers exercisable by the Magistrate under Section 52-A could be exercised by the Special Judge under Section 36.

10. Confining Benefit Of Enhancement Of Age Of Superannuation To One Set Of Employees & Denying It To Another Is Discriminatory: Orissa High Court

Case Title: Orissa Water Supply and Sewerage Board v. Praful Kumar Sethi & Ors.

Citation: 2022 LiveLaw (Ori) 10

In the instant matter, the writ appeals were directed against the order passed by a Single Judge allowing the writ petitions filed by the Respondent No. 1 in each of the writ appeals. In each of the said writ petitions, the prayer was for a direction to the Housing and Urban Development Department, Government of Odisha, to enhance the age of superannuation of the said four employees from 58 to 60 years. The Single Judge had held that there was no justification in the State Government not acting on the recommendation of the Appellant and in discriminating against the writ petitioners who stood on the same footing as other employees, in whose case the age of retirement was enhanced from 58 to 60 years. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik held that to confine the benefit of enhancement of the age of superannuation to one set of employees and deny it to another was plainly discriminatory.

11. Entire Books Of Account Can't Be Rejected Merely Because Of Non-Issuance Of Sale Memos: Orissa High Court

Case Title: M/s. Cresent Co. v. Commissioner of Income Tax, Sambalpur

Citation: 2022 LiveLaw (Ori) 11

The Court held that entire books of accounts cannot be rejected on the sole basis of non-issuance of sale memos. A Division Bench comprising of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik found that judgment in Ram Chandra Ram Nivas v. State of Odisha, (1970) 25 STC 501 (Ori) supports the contentions of the Assessees herein. There it was held that earning low profits by itself, without corresponding facts, cannot be a ground for holding that the books of account are not properly maintained. Again, in Md. Umar v. Commissioner of Income Tax, (1975) 101 ITR 525 (Patna), a Division Bench of the Patna High Court accepted the Assessee's books of account and held that the rejection was based on suspicion and surmises as well as irrelevant material.

12. "No Substantial Evidence Found": Orissa High Court Acquits Alleged Associates Of Gangster Sk. Hyder In Chuna Murder Case

Case Title: Tuku @ Abdul Naim Khan v. State of Odisha

Citation: 2022 LiveLaw (Ori) 12

The Court acquitted the alleged allies of former Gangster Sk. Hyder in the highly-highlighted Chuna murder case. While reversing the order of the Sessions Court, it reiterated that statement made under Section 164, Cr.P.C. is not a substantive piece of evidence. Further, it held that when a witness resiles from his earlier statement made under Section 164, he should be confronted with the said statement in extenso while cross-examination is conducted. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice B.P. Routray observed, it is clear that 164 statement of the witness is not substantive evidence of facts and the same cannot be used so. The earlier statement recorded under Section 164 Cr.P.C. can only be used for corroboration or contradiction. If the witness while giving evidence in Court sticks to his earlier statement recorded under Section 164 Cr.P.C, such statement can be acted upon subject to rule of caution. But when the witness resiles from his earlier statement, procedure is that he should be cross-examined and his statement made earlier as recorded under Section 164 Cr.P.C. should be confronted to him in extenso. The prosecution can place reliance on such statement only for the purpose of corroboration and that too, subject to rule of caution and if there are other sufficient evidence before the Court.

13. Order IX Rule 13 CPC | Defendant Can Only Take Part In Hearing After Ex-Parte Decree Against It Is Set Aside, Can't File Written Statement: Orissa HC

Case Title: Himansu Sekhar Srichandan v. Sudhir Ranjan Patra (since dead) Jully Patra & Ors.

Citation: 2022 LiveLaw (Ori) 13

The Orissa High Court has reiterated that even after an ex parte decree is set aside under Order IX Rule 13 of the CPC, defendant neither can be relegated to the original position nor can be allowed to file written statement. A Single Judge Bench of Justice K.R. Mohapatra relied upon the judgment in State of Orissa & Anr. v. Smt. Sitanjali Jena, (2016) 121 CLT 492, wherein it was held that when an ex parte decree is set aside and the suit is restored to file, the defendant cannot be relegated back to the position prior to the date of hearing of the suit. He would be debarred from filing any written statement in the suit, but then he can participate in the hearing of the suit inasmuch cross-examine the witness of the plaintiff, adduce evidence and address argument.

14. Bail Cannot Be Refused As An Indirect Method Of Punishment Before Conviction: Orissa High Court

Case Title: Smruti Ranjan Mohanty v. State of Odisha

Citation: 2022 LiveLaw (Ori) 14

A Single Judge Bench of Justice Sanjeeb Kumar Panigrahi observed that bail, as it has been held in a catena of decisions, is not to be withheld as a punishment. Bail cannot be refused as an indirect method of punishing the accused person before he is convicted. Furthermore, it has to be borne in mind that there is as such no justification for classifying offences into different categories such as economic offences and for refusing bail on the ground that the offence involved belongs to a particular category. It cannot, therefore, be said that bail should invariably be refused in cases involving serious economic offences. It also cited Sanjay Chandra v. CBI, (2012) 1 SCC 40, which dealt with a case involving an economic offence of formidable magnitude, touching upon the issue of grant of bail and had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon. It was further held therein that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. Again, detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution.

15. 'Letter Of Acceptance' In A Tender Can't Be Cancelled Unilaterally Without Assigning Reasons: Orissa High Court

Case Title: SRB Transport Sambalpur v. Union of India & Ors.

Citation: 2022 LiveLaw (Ori) 15

The Court held that a Letter of Acceptance (LoA) issued in favour of the successful party of a tender, cannot be cancelled unilaterally without assigning reasons for the same. A Division Bench of Justices B.R Sarangi and V. Narasingh relied on Union of India v. Mohan Lal Capoor, AIR 1974 SC 87, where it was held that reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision. The reasons assure an inbuilt support to the conclusion and decision reached. Accordingly, it rejected the arguments of the respondents and allowed the writ petitions quashing the orders which had unilaterally cancelled the LoA(s) without assigning reasons.

16. District Magistrate & Chief Judicial Magistrate Have Equal Jurisdiction To Decide Applications U/S 14 SARFAESI Act: Orissa High Court

Case Title: Bajaj Finance Ltd v. M/s Ali Agency & Ors.

Citation: 2022 LiveLaw (Ori) 16

A Division Bench of Justices Jaswant Singh and Sanjeeb Kumar Panigrahi has held that jurisdiction under Section 14, the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, can be exercised by either of the two authorities namely Chief Judicial Magistrate and District Magistrate. Therefore, both the authorities are equally competent to exercise the jurisdiction. The Court relied on the law laid down by the Supreme Court in Authorised Officer, Indian Bank v. D. Visalakshi & Anr., wherein it was held that:

"…there is nothing wrong in giving expansive meaning to the expression "CMM", as inclusive of CJM concerning non-metropolitan area, who is otherwise competent to discharge administrative as well as judicial functions as delineated in the Cr.P.C. on the same terms as CMM. That interpretation would make the provision more meaningful. Such interpretation does not militate against the legislative intent nor it would be a case of allowing an unworthy person or authority to undertake inquiry which is limited to matters specified in Section 14 of the 2002 Act… To sum up, we hold that the CJM is equally competent to deal with the application moved by the secured creditor under Section 14 of the 2002 Act."

17. Final Order Passed By Any Authority Despite Having Knowledge Of Court's Interim Order For Maintaining Status Quo Is A Nullity: Orissa HC

Case Title: Amar Kumar Behera v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 17

A Single Judge Bench of Justice Sashikanta Mishra reiterated that authorities cannot pass final order despite having knowledge that an interim order for maintaining status quo has been passed by a Court/Tribunal. Any order, it held, passed by any authority in spite of the knowledge of the interim order of the Court is of no consequence as it remains a nullity and therefore the parties are to be brought back to the same position as if the order had not been violated. In other words, in such cases, restoration of the status quo ante is the appropriate relief to be granted. To find support, it cited decision of the Supreme Court in Manohar Lal (dead) by LRs v. Ugrasen (dead) by LRs & Ors, (2010) 11 SCC 557.

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