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Orissa High Court Monthly Digest:...

Orissa High Court Monthly Digest: March 2023

Jyoti Prakash Dutta

12 April 2023 11:00 AM GMT

S. 97 CrPC | Second Application For Search Of Persons Wrongfully Confined Can Be Entertained If New Facts & Circumstances Arise: Orissa High Court

Case Title: Amrita Ray v. State of Odisha & Ors.

Citation: 2023 LiveLaw (Ori) 31

The Orissa High Court clarified that a second application under Section 97 of the Code of Criminal Procedure is not barred by the principle of res judicata and can be entertained if some new facts and circumstances arise warranting intervention. Notably, the Section provides “search for persons wrongfully confined”. While allowing the revision petition filed against the dismissal of a second application under the above provision, a Single Judge Bench of Justice Sashikanta Mishra said,

“…in particular, looking at the statutory intent behind enactment of Section 97 of Cr.P.C. it can be safely held that in the peculiar facts and circumstances of the present case, the filing of the subsequent application cannot be treated as barred by law.”

Assesses Failed To File Affidavit Proving Repayment Of Loans: Orissa High Court Sustains Addition On “Unsecured Loan”

Case Title: M/s. Unideep Food Processing (P) Ltd. Versus ITAT

Citation: 2023 LiveLaw (Ori) 32

The Orissa High Court sustained the addition of unsecured loans under Section 68 of the Income Tax Act, 1961. The Division Bench of Chief Justice S. Muralidhar and Justice M.S. Raman observed that the direction issued by the ITAT in the first round was to the effect that the AO should verify whether the assessee had repaid the amount "by calling all the creditors". Therefore, it is the AO who should have issued a summons to them to appear. Even assuming that the AO did not do so, the fact remains that the assessee did not ask for a summons to be issued.

Orissa High Court Sets Aside Order Pronounced ‘15 Months’ After Hearing Concluded; Says Authority May Forget Parties' Submissions After So Long

Case Title: Laxmi Sahu v. State of Odisha & Ors.

Citation: 2023 LiveLaw (Ori) 33

The Orissa High Court set aside an order by a Revenue Divisional Commissioner which was pronounced 15 months after hearing of the case concluded. Additionally, the Court directed all the judicial and quasi-judicial authorities in the State to abide by the mandate of Order 20 Rule 1, CPC which prescribes time limit for delivery of judgment. While deprecating unreasonable delay in pronouncing verdict, a Single Bench of Justice Biswanath Rath said,

“…if such mode is accepted, then disposal of such matters providing opportunity of hearing may not be a requirement and it may be opened to the adjudicatory authority to decide the matter accordingly on the basis of pleadings and objection, if any, of the respective parties, which is never the intention in setting up the Quasi-Judicial authority.”

Assesses Failed To File Affidavit Proving Repayment Of Loans: Orissa High Court Sustains Addition On “Unsecured Loan”

Case Title: M/s. Unideep Food Processing (P) Ltd. v. ITAT

Citation: 2023 LiveLaw (Ori) 34

The Orissa High Court sustained the addition of unsecured loans under Section 68 of the Income Tax Act, 1961. The Division Bench of Chief Justice Dr. S. Muralidhar and Justice M.S. Raman observed that the direction issued by the ITAT in the first round was to the effect that the AO should verify whether the assessee had repaid the amount "by calling all the creditors". Therefore, it is the AO who should have issued a summons to them to appear.

Kinley Water Falls Within Water, Not Aerated Or Mineral Water, Comes Within Tax Free List: Orissa High Court

Case Title: State of Odisha v. M/s. Hindustan Coca-Cola Beverages Pvt. Ltd.

Citation: 2023 LiveLaw (Ori) 35

The Orissa High Court held that the sale of packaged drinking water under the brand name ‘Kinley Water’ falls within the expression "water but not aerated or mineral water sold in bottles or sealed containers," which is covered under Entry No. 39 of the Tax-Free List. The Division Bench of Chief Justice Dr. S. Muralidhar and Justice Murhari Sri Raman observed that the packaged drinking water sold under such brand name is nothing but purified water.

Orissa High Court Quashes Police Circular Order Conferring ‘Power Of Investigation’ On Graduate Constables & CI Havildars

Case Title: Minaketan Nayak & Ors. v. State of Odisha & Ors.

Citation: 2023 LiveLaw (Ori) 36

The High Court nullified a Police Circular Order (PCO) which conferred ‘power of investigation’ on Graduate Constables and Crime Intelligence Havildars. While setting aside the order, the Single Judge Bench of Justice Aditya Kumar Mohapatra held,

“…this Court by no stretch of imagination could presume that the legislatures while enacting Sections 156 and 157 of the Cr.P.C. were not aware of the meaning of the word “Officer”. Furthermore, while providing that the cases are to be investigated by the Officer-in-Charge of the Police Station, it has also been provided that in course of investigation the OIC / IIC cannot send a person to the spot for investigation who is below the rank of an Officer as has been prescribed by the State Government in this behalf.”

Chokad Is Not An Industrial Input: Orissa High Court Quashes Order Imposing 4% VAT

Case Title: M/s. Kamadhenu Cattle & Poultry Feed Unit v. The State of Odisha

Citation: 2023 LiveLaw (Ori) 37

The Orissa High Court quashed an order imposing 4% Value-Added Tax (VAT) on wheat bran (chokad) as it is not an industrial input. The Division Bench of Chief Justice Dr. S. Muralidhar and Justice Murahari Sri Raman observed that it was necessary for the Department to show that there was a notification issued by the State Government identifying ‘Chokad’ as an ‘industrial input'. In the absence of such notification, the Bench held, no inference could have been drawn that the ‘chokad’ sold to NALCO was in fact an ‘industrial input’.

“Legal System Completely Failed Him”: Orissa High Court Orders ₹10 Lakh Compensation To Wife Of Tribal Man Killed In Police Custody

Case Title: Maria Kadaisma @ Kadaiska @ Salmina v. State of Odisha & Ors.

Citation: 2023 LiveLaw (Ori) 38

The High Court ordered the Central Reserve Police Force (CRPF) and the Odisha Police to pay an amount of rupees ten lakhs as compensation to the wife of a tribal man who was killed in their custody in 2010. The Division Bench of Chief Justice Dr. S. Muralidhar and Justice Murahari Sri Raman said it is no coincidence that the deceased tribal, who was tortured to death after being labelled a maoist with not even an iota of evidence, belonged to the poorer sections of the society. It lamented that the victim was denied his basic rights while in custody and said,

“He had no one to represent his interests or to give him legal assistance while in custody. The legal system appears to have completely failed him. The mandatory fundamental rights available to an arrested person as spelt out in Article 22(1) and (2) of the Constitution of India were violated with impunity in this case first by the CRPF and then the police.”

Unrealistic To Expect GST Return Filing Without Actual Commencement Of Business: Orissa High Court Directs Dept. To Process Licence Application

Case Title: M/s. Galaxy Bar and Restaurant, Nayagarh v. State of Odisha & Ors.

Citation: 2023 LiveLaw (Ori) 39

The Orissa High Court held that license application should not be rejected only because a GST return has not been filed yet, since it is unrealistic to expect that to happen without the actual commencement of its business. The Division Bench of Chief Justice Dr. S. Muralidhar and Justice Gourishankar Satapathy observed that unless the petitioner is issued a license and is able to commence its business, the question of filing a GST return would not arise.

Section 311 CrPC | Orissa High Court Allows Recall Of Witness 26 Yrs After He Was Cross-Examined & Discharged

Case Title: Rudra Narayan Sahu v. State of Odisha

Citation: 2023 LiveLaw (Ori) 40

The Orissa High Court allowed a petition filed under Section 311 of the Code of Criminal Procedure after a delay of ‘26 years’ for recalling a witness who was cross-examined and discharged in 1997. While stressing on the right of the accused to fair trial, the Single Judge Bench of Justice Sashikanta Mishra observed,

“This is a classic case where the question of belated justice is pitted against the right of the accused to a fair trial. Having regard to the fundamental principles enshrined in the Constitution of India, this Court would rather lean in favour of the latter than the former so that the end result i.e., of rendering of justice to the parties is actually realised.”

Witchcraft Double Murder: Orissa High Court Issues Notice To Life Convicts Proposing To Impose Higher Punishment

Case Title: Basanta Dehury & Ors. v. State of Odisha

Citation: 2023 LiveLaw (Ori) 41

While upholding conviction of three persons for double murder on suspicion of witchcraft, the Orissa High Court issued notice to them proposing to impose higher sentence than life imprisonment which was imposed by the Trial Court. Expressing doubt over adequacy of the sentence for such ghastly crime by means of beheading, the Division Bench of Justice Debabrata Dash and Justice Sashikanta Mishra ordered,

“…in exercise of the revisional power under section 397 read with section 401 of the Code of Criminal Procedure, we propose to issue notice to these accused persons to have their say on the adequacy of sentence and as to why they should not be visited with the sentence of higher degree.”

Promissory Estoppel Not To Apply In Favour Of Student Who Despite Knowledge Of Failure In Intermediate Exam Acquired Higher Qualification: Orissa HC Full Bench

Case Title: Litumanjari Pradhan v. Chairman, Council of Higher Secondary Education, Bhubaneswar & Ors.

Citation: 2023 LiveLaw (Ori) 42

A Full Bench of Orissa High Court answered a reference deciding the correctness of a decision rendered by a Division Bench wherein it was held that the rule of estoppel will apply in favour of a student, who without knowing that he has failed in matriculation/intermediate examination, gets higher education and joins service. The Bench comprising Chief Justice Dr. S. Muralidhar, Dr. Justice Sanjeeb Kumar Panigrahi and Justice Murahari Sri Raman said the decision of the Division Bench is no longer good law.

“It is no doubt true that the Courts have, more often than not, leaned in favour of the students, but as the things stand, a line must be drawn between cases where there have been a bona fide error and cases where the circumstances are dubious,” said the court.

Orissa High Court Asks Collector To Reconsider Appeal For Issuance Of ST Certificate On Basis Of Mother’s Tribe

Case Title: Jayanti Naik v. State of Odisha & Ors.

Citation: 2023 LiveLaw (Ori) 43

The Orissa High Court ordered an appellate authority (collector) to reconsider an appeal against denial of tribe certificate to a boy who was brought up by his tribal mother. The woman had been deserted by her non-tribal husband. While giving relief to the petitioner, the Single Judge Bench of Justice Arindam Sinha observed,

“The appellate authority thereafter went on to take view that the Tahsildar had properly followed the procedures as per rules and regulations, while rejecting the application of appellant. Assertion of petitioner on facts regarding bringing up of her son in the tribal community was not even looked at.”

Section 138, NI Act | Proceedings Can’t Be Invalidated Merely Because Costs For Miscellaneous Expenses Claimed Alongwith Cheque Amount: Orissa High Court

Case Title: Hemalata Mohapatra v. Bijay Kumar Pradhani

Citation: 2023 LiveLaw (Ori) 44

The Orissa High Court held that a proceeding under Section 138 of the Negotiable Instruments Act cannot be invalidated only because the notice claims costs for some miscellaneous expenses alongside demanding the cheque amount. While relying on the decisions of the Apex Court, the Single Judge Bench of Justice Radha Krishna Pattanaik observed,

“…in view of the settled legal position in K.R. Indira (supra), the irresistible conclusion is that the defect in notice cannot invalidate the proceeding when the demand is only for the cheque amount with additional claim towards the miscellaneous expenses…”

“Criminal Trial Is Not IPL T20 Match”: Orissa High Court Sets Aside Rape Conviction As Defence Counsel Not Granted Reasonable Time For Preparation

Case Title: Khudia @ Khudiram Tudu v. State of Odisha

Citation: 2023 LiveLaw (Ori) 45

The Orissa High Court set aside the conviction and sentence imposed on a rape accused on the ground that the State Defence Counsel, who represented him in the Trial Court, was neither supplied with police papers nor given a reasonable amount of time to prepare for the cross-examination of the victim. Expressing dissatisfaction over the hurried-up manner in which the cross-examination was completed, the Single Judge Bench of Justice Sangam Kumar Sahoo observed,

“Engaging a new State Defence Counsel without providing him police papers and just asking him to inspect the case record and to cross-examine the victim and also taking consent from him to conclude the cross-examination on that day itself, in my humble view, is a gross illegality and the accused has been seriously prejudiced by such action of the trial Court. A criminal trial is not an IPL T20 match where every ‘substitute player’ can be an ‘impact player’.”

Orissa High Court Quashes Criminal Case Against 146 Villagers Who Gathered In Church Amid COVID Restrictions To Offer Prayers For Departed Soul

Case Title: Midiyan Pani & Ors. v. State of Orissa

Citation: 2023 LiveLaw (Ori) 46

The Court quashed a criminal case pending against 146 villagers of a village in Rayagada district for allegedly congregating in a Church to offer prayers for a departed soul at a time when the COVID-19 pandemic was prevailing and government guidelines restricting gatherings were imposed. While granting relief, the Single Judge Bench of Justice Sashikanta Mishra said,

“…this Court finds lack of evidence of any criminal intention on the part of the Petitioners, rather, the congregation was for a pious reason to pray for a departed soul. Obviously, no criminality can be attributed in such a case.”

Different Amount Mentioned In Tax Invoice And E-Way Bill: Orissa High Court Orders Issuance Of Fresh Assessment Order

Case Title: M/s. Jena Trading and Co. v. CT and GST Officer

Citation: 2023 LiveLaw (Ori) 47

The Orissa High Court held that different amounts mentioned in a tax invoice and e-Way Bill indicate a palpable error in the waybill, which may be construed as a human error. The Division Bench of Justice Bidyut Ranjan Sarangi and Justice Murahari Sri Raman quashed the assessment order and remitted the matter back to the assessing authority for reconsideration in accordance with the law.

Executive Magistrate Not Empowered To Record Confession For Offences Under Essential Commodities Act: Orissa High Court

Case Title: Ananda Ch. Sahu v. State of Odisha

Citation: 2023 LiveLaw (Ori) 48

The Orissa High Court held that an Executive Magistrate is not empowered to record confession for offences committed under the Essential Commodities Act, 1955. It also held that in absence of any specific procedure governing recording of confession and trial under the Act, the Code of Criminal Procedure shall apply. While clarifying the position of law, the Single Judge Bench of Justice Sashikanta Mishra observed,

“The very words, ‘or under any other law for the time being in force’ implies that investigations conducted in respect of offences under Special Acts like the Essential Commodities Act shall also be governed by the provisions under Section 164 of CrPC unless a specific procedure is laid down in such Act(s).”

Wife Can’t Prosecute Extra-Marital Partner Of Husband For Domestic Violence Only Because She Lived In Their House: Orissa High Court

Case Title: Rabindra Kumar Mishra & Anr. v. State of Odisha & Anr.

Citation: 2023 LiveLaw (Ori) 49

The Orissa High Court observed that an illicit/extra-marital partner of husband cannot be prosecuted under the Domestic Violence Act by wife merely because she lived in the house of the couple. The Court said, both the women (wife and extra-marital partner) do not share ‘domestic relationship’ as per Section 2(f) of the Act, which is a pre-condition to invoke the provisions of the statute, merely because they stayed under the same roof.

Section 329(2) CrPC | Physical Presence Of Accused Essential For Determining Unsoundness Of Mind Making Him Incapable To Enter Defence: Orissa High Court

Case Title: Prafulla Chandra Mohapatra @ Prusty v. State of Odisha

Citation: 2023 LiveLaw (Ori) 50

The Orissa High Court clarified that physical presence of accused in the Court is essential, under Section 329(2) of the Code of Criminal Procedure, to assess if unsoundness of mind renders him incapable to enter defence. It underlined that the concerned Court must not pass order to that effect without examining the accused, merely basing upon medical certificate. While elucidating the point of law, the Single Judge Bench of Justice Radha Krishna Pattanaik said,

“…to determine the mental faculty of the accused and whether he is capable to defend himself, it shall have to be assessed by the Court and for the said purpose his examination is necessary and the same is the statutory mandate. Merely by referring to the medical papers and certificate of the Medical Board, a Court is not to pass any such order either discharging him or postponing the trial.”

Important Developments

Orissa High Court Directs State To Furnish List Of Agencies Engaged For Cleaning Of Sewers & Septic Tanks

Case Title: In Re: Deaths of Sanitation Workers v. Chief Secretary & Ors.

Case No.: W.P.(C) No. 14589 of 2021

The Orissa High Court ordered the State to provide the list of agencies engaged on outsourcing basis to clean sewers and septic tanks. It also directed them to indicate in a chart as to whether the Standard Operating Procedures (SOPs) and training manuals have been provided to them and also if those are strictly complied with. While expressing concern over death of workers engaged in sanitation works, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Murahari Sri Raman said:

“The Court wishes to underscore the need to take ‘preventive’ measures so that any deaths in future of persons engaged in cleaning of sewers and septic tanks is avoided.”

Orissa High Court Orders District Legal Services Authorities To File Applications On Behalf Of 45 Prisoners Unable To Furnish Bail Bonds

Case Title: Krushna Prasad Sahoo v. State of Odisha & Ors.

Case No.: W.P.(C) No. 6610 of 2006

The Orissa High Court directed the District Legal Services Authorities (DLSAs) of eight districts to file appropriate applications before respective criminal courts for release of about 45 prisoners who have already been granted bail, but unable to exit the prisons due to inability to furnish bail bonds. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Gourishankar Satapathy was hearing a Public Interest Litigation (PIL) concerning over-crowding of various jails in the State.

Orissa High Court Orders Govt To Provide More Ambulances To Jails; Directs DLSA Secretaries To Undertake Unannounced Jail Visits

Case Title: Krushna Prasad Sahoo v. State of Odisha & Ors.

Case No.: W.P.(C) No. 6610 of 2006

The Orissa High Court passed a number of directions to the State Government for improving the conditions of jails across the State. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Gourishankar Satapathy asked the Secretaries of District Legal Services Authorities (DLSAs) to pay unannounced visits to jails in their respective jurisdictions to assess prison conditions. Further, the Court was informed that the 20 ambulances previously provided by the Government have already been allocated to the most crowded jails and sub-jails. Thus, it directed:

“Considering that there are 87 jails and sub-jails in Odisha, a direction is issued to the Home Department to ensure that at least 10 more ambulances are provided to the Prisons Department for use in the jails and sub-jails. This must be done by the end of May, 2023.”

Orissa High Court Chief Justice Throws Open ‘Museum Of Justice’

The refurbished Museum of Justice set up by the Orissa High Court inside the Barabati Quila (Fort), Cuttack, was thrown open for public on March 10, 2023 in the presence of Chief Justice Dr. S. Muralidhar and the Judges of the High Court. The Museum was inaugurated by Prof. Ganeshi Lal, Governor of Odisha on February 25, 2023. The visiting hours would be from 10 AM to 6 PM on all days, except Monday and nothing will be charged from the visitors for the first few months.

Chief Justice Muralidhar Inaugurates Virtual High Courts In 10 More Districts Of Odisha

On March 27, 2023, Chief Justice of the Orissa High Court Dr. Justice S. Muralidhar inaugurated 10 ‘Virtual High Courts’ in 10 more districts of the State of Odisha. On 3rd February this year, the High Court had established Virtual High Courts in 10 of the 30 Districts in the 1st phase, which were inaugurated by CJI DY Chandrachud virtually. After receiving encouraging feedback about the 1st phase, the High Court decided to set up 10 more Virtual Courts in the 2nd phase in the Districts of Angul, Dhenkanal, Jagatsinghpur, Jajpur, Keonjhar, Kendrapara, Kandhamal at Phulbani, Mayurbhanj at Baripada, Nayagarh, Sundargarh.

Orissa High Court Invites Senior Citizens From Old Age Home To Visit Its Premises & Museum Of Justice

In a bid to increase access to justice and to make courts people friendly, senior citizens from an Old Age Home run by the Association for Social Reconstructive Activities (ASRA), Cuttack were invited to visit the Orissa High Court, the Museum of Justice and the Odisha State Legal Services Authority (OSLSA). The officials of the High Court guided them inside the institutions and narrated various aspects of judicial functioning. The senior citizens were elated to be in the Chief Justice’s Courts and Chambers and to learn about the Chief Justices and Judges of the yesteryears. Notably, the High Court, under the leadership of Chief Justice Dr. S. Muralidhar, has already opened its gates for school children, law students and hearing and speech impaired children, who have been visiting its premises since last year.

Orissa High Court Launches Free Wi-Fi, E-Inspection Facility For Advocates

On March 29, 2023, Chief Justice of the Orissa High Court Dr. Justice S. Muralidhar launched ‘free Wi-Fi facility’ and ‘e-Inspection facility’ for the members of the High Court Bar Association in presence of the Judges of the High Court, the Advocate General, newly-elected President and office bearers of the High Court Bar Association.

Orissa High Court Will Have Its Own Database With Judgments From 1948 Onwards: Justice Subhasis Talapatra

On 29th March, Chief Justice of the Orissa High Court Dr. Justice S. Muralidhar launched ‘free Wi-Fi facility’ and ‘e-Inspection facility’ for the members of the High Court Bar Association in presence of the Judges of the High Court, the Advocate General, newly elected President and office bearers of the High Court Bar Association. While speaking on the occasion, Justice Subhasis Talapatra, Judge & Chairperson of the IT & AI Committee of the High Court informed that steps are being taken to create a database with a search engine where the judgments rendered by the High Court from the year 1948 onwards will be stored.

Orissa High Court CJ Muralidhar Lauds Justice Anoop Chitkara Of Punjab & Haryana HC For Using ChatGPT While Writing Bail Order

On 29th March, Chief Justice of the Orissa High Court Dr. Justice S. Muralidhar launched free Wi-Fi and e-inspection of records facilities for the advocates of the High Court in the presence of the Judges, the Advocate General and the Bar members. While addressing the gathering, he referred to the recent order passed by Justice Anoop Chitkara, Judge of the Punjab & Haryana High Court, while deciding a bail application wherein he sought assistance of ChatGPT to get a broader outlook on the bail jurisprudence around the world in cases of cruel assault.

“One Judge, Justice Anoop Chitkara in the Punjab and Haryana High Court, just last week he was preparing a bail order. So, he asked ChatGPT to tell him about the principles governing grant of bail when there is a cruel and unusually cruel assault. He put some standard phrases and ChatGPT gave him two paragraphs on what the legal position is. Justice Chitkara has explained the whole process in the order that he has written and yet he says that this is only a tool which can tell me what the law is, how to apply the law and what I should decide on the basis of the law is my task.”

Orissa High Court Monthly Digest: March 2023

Jyoti Prakash Dutta

Case Title: Amrita Ray v. State of Odisha & Ors.

Citation: 2023 LiveLaw (Ori) 31

Case Title: Laxmi Sahu v. State of Odisha & Ors.

Citation: 2023 LiveLaw (Ori) 33

Case Title: State of Odisha v. M/s. Hindustan Coca-Cola Beverages Pvt. Ltd.

Citation: 2023 LiveLaw (Ori) 35

Case Title: Minaketan Nayak & Ors. v. State of Odisha & Ors.

Citation: 2023 LiveLaw (Ori) 36

Case Title: M/s. Kamadhenu Cattle & Poultry Feed Unit v. The State of Odisha

Citation: 2023 LiveLaw (Ori) 37

Case Title: Maria Kadaisma @ Kadaiska @ Salmina v. State of Odisha & Ors.

Citation: 2023 LiveLaw (Ori) 38

Case Title: Litumanjari Pradhan v. Chairman, Council of Higher Secondary Education, Bhubaneswar & Ors.

Citation: 2023 LiveLaw (Ori) 42

“It is no doubt true that the Courts have, more often than not, leaned in favour of the students, but as the things stand, a line must be drawn between cases where there have been a bona fide error and cases where the circumstances are dubious,” said the court.

Case Title: Jayanti Naik v. State of Odisha & Ors.

Citation: 2023 LiveLaw (Ori) 43

Case Title: Midiyan Pani & Ors. v. State of Orissa

Citation: 2023 LiveLaw (Ori) 46

Case Title: M/s. Jena Trading and Co. v. CT and GST Officer

Citation: 2023 LiveLaw (Ori) 47

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