2 Jan 2023 6:54 AM GMT
The year 2022 has come to an end. The preceding 365 days were quite significant for the Orissa High Court in terms of the jurisprudence it developed on manifold aspects of law, starting from important questions touching upon constitutional provisions to several facets of criminal, civil, election and family laws. Live Law has reported as many as 167 judgments and orders delivered by the...
The year 2022 has come to an end. The preceding 365 days were quite significant for the Orissa High Court in terms of the jurisprudence it developed on manifold aspects of law, starting from important questions touching upon constitutional provisions to several facets of criminal, civil, election and family laws.
Live Law has reported as many as 167 judgments and orders delivered by the court over the year. Here are some of the important decisions rendered by the court.
Orissa High Court Upholds 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.
Right Of Accused To Recall Witness U/S 311 CrPC Can't Always Be Denied In Lieu Of Prosecutrix's Right U/S 33(5) POCSO Act: Orissa High Court
Case Title: Pidika Sambaru v. State of Odisha & Anr.
Citation: 2022 LiveLaw (Ori) 21
A Single Judge Bench of Justice S.K. Panigrahi ruled that the right of an accused to recall witnesses under Section 311 CrPC cannot be denied only because there exists a right of prosecutrix under Section 33(5) of the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act"). The said provision requires the Special Court to ensure that the child (prosecutrix) is not called repeatedly to testify in the court. While allowing the revision petition, it was held that the provisions of Section 33 laid down a general principle which must guide the trial Court and is similar to Section 309 Cr.P.C, being in the nature of laws to ensure speedy trial. However, by virtue of Sections 4 and 5 of Cr.P.C, Section 311 Cr.P.C shall prevail as no specific procedure is provided under POCSO Act for recall of a witness. Section 42A of POCSO Act clarifies that the Act is not in derogation of any other Law.
Bar U/S 362 CrPC Is Not Absolute; Court Has Inherent Jurisdiction To Recall Order For Securing The Ends Of Justice: Orissa High Court
Case Title: Siba Bisoi & Ors. v. State of Odisha
Citation: 2022 LiveLaw (Ori) 30
The High Court held that bar under Section 362, Cr.P.C. is not absolute and the same cannot be strictly applied to 'recall of orders' which are obtained through playing fraud upon the Court. While recalling an order which was obtained through misrepresentation of dates, a Single Judge Bench of Justice Sashikanta Mishra held,
"The position that emerges from a reference to the case laws noted above is that the bar under Section 362 of Cr.P.C. is not absolute and in any case, does not apply in case of recall of the order. There is no dispute that the inherent power of the High Court under Section 482 of Cr.P.C. can be exercised if any of the three conditions exist, namely, to give effect to any order under the Code, to prevent abuse of the process of Court or to secure the ends of justice."
COVID-19 Deaths | Orissa High Court Directs The State To Pay Compensation For Negligence By State-Run Medical Facility
Case Title: Gyanadutta Chouhan v. The Additional Chief Secretary to Government, Health & Family Welfare Department, Government of Odisha
Citation: 2022 LiveLaw (Ori) 34
In a significant decision, the High Court held liable a State-run medical facility, i.e. Veer Surendra Sai Institute of Medical Sciences and Research (VIMSAR), for medical negligence which caused death of two COVID-19 patients. While issuing directions for payment of ex-gratia and compensation to the victims and their kins, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanik observed,
“The Court in the present instance is dealing with violation of the right to health of the victims guaranteed and protected under Article 21 of the Constitution of India. After the judgment of the Supreme Court in Pt. Parmanand Katara v. Union of India, 1989 AIR 2039 and Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 SCC 37, no person can be denied adequate standard of medical care in Government health institutions. The excuse of lack of resources was never accepted by the Supreme Court of India."
Accordingly, the Court proceeded on to direct the following:
On or before 15th April 2022, the State shall pay Rs.50,000/- as ex gratia amount to the victims (if alive) and the next of kin of the victims who have died, on account of the COVID-19 disaster whose names have been mentioned in the report of Shri A.B.S. Naidu, Retired District Judge;
Rs. 5 lakhs shall be paid each to the families of the two victims who died, as compensation for their respective deaths on account of the medical negligence. This will be in addition to Rs.50,000/- ex gratia amount which will be payable to the said families.
High Court Being A 'Court Of Equity' Must Not Let Rigid Technical Rules To Perpetuate Miscarriage Of Justice: Orissa High Court
Case Title: Ramesh Chandra Pani v. State of Orissa and Ors.
Citation: 2022 LiveLaw (Ori) 36
The High Court held that it being a Court of equity, must not let rigid technical rules of procedure to trump justice and to pave way for manifest miscarriage of justice. While denying relief to a person, who had been evading his liability for almost two decades under the garb of procedures, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,
“The Court exercising jurisdiction under Article 226 of the Constitution is also a Court of equity. It will have to be mindful of the interests of justice and ensure that in rigidly applying technical rules of procedure miscarriage of justice does not result.”
Orders Obtained Fraudulently Can Be Set Aside Even If Fraud Is Detected After Limitation Period: Orissa High Court
Case Title: Asha Hans v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 40
The Court held that orders obtained through fraudulent means can be set aside even if fraud is detected after the limitation period. While refusing to set aside an order cancelling leases on detection of fraud, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,
"Regard being had to the above facts and the circumstances under which the lands were settled with the lessees in clear violation of the provisions of the OGLS Act with the fraud being played upon the authority concerned, who again failed to follow the procedures and as a result, the illegality was committed, the Court is of the considered view that since the fraud was detected in the year 1998 and thereafter, OP No.2 promptly took action and proceeded to cancel the leases, such action cannot be held as unfair and unjustified."
Orissa High Court Issues Directions To Ensure Nutritional Food, Hygiene And Health Facilities For Jail Inmates
Case Title: Krushna Prasad Sahoo v. State of Orissa & Ors.
Citation: 2022 LiveLaw (Ori) 41
A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik issued certain directions to the Director General, Prisons to ensure food, hygiene and health facilities in all the jails/sub-jails of the State. It also directed all the District Legal Services Authorities (DLSAs) to inspect the above-noted basic amenities in all the jails and sub-jails of Odisha. The Court wrote,
"The Court hereby issues a directive to the DG, Prisons to ensure that there is not a single Jail, Sub-Jail in Odisha where the toilets, the prison wards are found wanting in cleanliness and hygiene. Further, the food quality has to be of the best possible standard given the budget allocated for prisoners, both undertrials and convicts. The Court would like to emphasize not only has the quality of food to be good, but the quantity too in terms of the required calorific value, has to be ensured."
S.115 CPC | Decisions Of District Courts Rendered In Appeal/ Revision Are Beyond Revisional Jurisdiction Of High Court: Orissa HC
Case Title: Kailash Chandra Panda & Ors. v. State of Orissa & Ors.
Citation: 2022 LiveLaw (Ori) 48
The High Court held that a revision petition under Section 115 of the Code of Civil Procedure is not maintainable before the High Court against an order of District Court which is passed in the appellate or revisional jurisdiction. It clarified that an order must have been made under the 'original jurisdiction' of District Court to attract applicability of the provision. While explaining the true purport of the terms 'other proceedings' appearing under Section 115, a Single Judge Bench of Justice Biswajit Mohanty observed,
"The words "or other proceedings" have to be read ejusdem generis with the words "original suits". In other words, the phrase 'other proceedings' will not cover cases arising out of decisions made in the appeals or revisions. If the District Court has not decided in its original jurisdiction, then such order is not amenable to the revisional jurisdiction of High Court."
S. 167(2), CrPC | Only 'Date Of Submission' Of Chargesheet Is Relevant For Default Bail, Not 'Date Of Preparation': Orissa High Court
Case Title: Pramesh Pradhan @ Rani & Anr. v. State of Orissa
Citation: 2022 LiveLaw (Ori) 54
The Court held that 'date of submission' of chargesheet is the only relevant date that should be taken into consideration while granting 'default bail' under Section 167(2) of the Code of Criminal Procedure. 'Date of preparation' of chargesheet is immaterial unless it is produced before the Court on the same day. A Single Judge Bench of Justice Bibhu Prasad Routray ruled,
"As per the language used in Section 167, Cr.P.C., the detention is authorized pending completion of investigation and completion of investigation leads to submission of report under Section 173(2), Cr.P.C. The words used in Section 173(2), Cr.P.C. is 'as soon as'. Therefore, the inference is that, the investigation has been completed only when the charge-sheet is submitted to the court. Thus, the date of completion of investigation is the date of submission of charge-sheet and reverse."
Serious Candidate Will Find Resources To Make Deposit For Contesting In Election: Orissa High Court Upholds Constitutional Validity Of Section 34 Of Representation People Act
Case Title: Uma Charan Mishra v. Union of India
Citation: 2022 LiveLaw (Ori) 56
The Orissa High Court upheld the constitutional validity of Section 34 of the Representation of the People Act, 1951 which stipulates that eligible citizens can contest the election for being a Member of the Legislative Assembly (MLA) of the State, only if each of them deposits Rs. 10,000/- and for being a Member of Parliament (MP) only if they deposit Rs.25,000/. “A serious candidate for an election, who is keen on contesting will be able to find the resources to make the deposit of Rs.10,000/- for an election to the Legislative Assembly or Rs.25,000/- for the Parliament” the bench comprising the Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik observed while dismissing the challenge.
Mere Filing Of Curative Petition Is Not A Ground To Stay Proceedings Of Execution Petition: Orissa High Court Affirms
Case Title: State of Odisha & Ors. v. Larsen and Toubro Ltd.
Citation: 2022 LiveLaw (Ori) 74
The High Court confirmed the judgment of an Executing Court, which held that mere filing of curative petition does not constitute a ground to put a stay on the proceedings of execution petition. In light of the dispute between the parties in the present case, the Petitioners (State) had challenged the award and, thereafter filed an appeal in the Supreme Court. When the civil appeal went against them in the Supreme Court, the petitioners preferred review. That also went against them. Subsequently, they have filed a curative petition. The Court highlighted that the Executing Court said in impugned order that merely filing of curative petition is not a ground to stay the further proceeding of the execution petition and rejected petitioners' prayer for stay. In aforesaid circumstances, Single Bench of Justice Arindam Sinha did not find that the executing Court proceeded illegally in exercise of its jurisdiction, or there is material irregularity in impugned order.
Honourable Exoneration In Departmental Proceedings Would Warrant Quashing Of Criminal Prosecution Arising From Same Set Of Facts: Orissa High Court
Case Title: Dr. Minaketan Pani v. State of Orissa
Citation: 2022 LiveLaw (Ori) 81
In a landmark decision, the Orissa High Court held that honourable exoneration in departmental proceedings would warrant quashment of criminal prosecution which emanated from the same set of facts. While quashing criminal charges against the petitioner, a Single Judge Bench of Chief Justice Dr. S. Muralidhar held,
"…in the facts and circumstances of the present case where on the same charges on which the Petitioner is facing criminal trial he has been honourably exonerated in the departmental proceedings, the Court adopts the reasoning of the decisions in Radheyshyam Kejriwal v. State of West Bengal (supra) and Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI (supra) and sets aside the impugned order dated 15th January 2009, passed by the Sub-Divisional Judicial Magistrate (S) Cuttack in G.R. Case No.1057 of 2007."
Just One Psychiatrist For All Prisoners With Mental Illnesses; Not Sustainable: Orissa High Court Expresses Concern Over Prison Conditions
Citation: 2022 LiveLaw (Ori) 82
The Orissa High Court expressed deep concerns on the issue of the mental health of prisoners. On knowing that there exists only one psychiatrist to attend all prisoners in the state with mental illness, a Division Bench of Chief Justice S. Muralidhar and Justice R.K. Pattanaik noted, "This situation is unsustainable considering that it is physically impossible for just one psychiatrist to attend to all prisoners with mental illnesses."
The development came in an ongoing case in which the High Court had previously directed the Director-General, Prisons, to ensure food, hygiene, and health facilities in all the jails/sub-jails of the State. It had also directed all the District Legal Services Authorities (DLSAs) to inspect the above-noted basic amenities in all the prisons and sub-jails of Odisha. In an earlier order, the District Magistrates were directed to visit the jails using the prison inspection format prepared by Commonwealth Human Rights Initiative, New Delhi (CHRI). Based on the reports of these visits, the OSLSA submitted that there are at least 286 prisoners with mental illnesses in the various jails and sub-jails. The Director General, Prisons anticipated that this number may be even higher and around 500 prisoners. The Court expressed deep concern on the submission that there is just one psychiatrist who caters to the needs of all prisoners in the State. The Court also touched on the issues of overcrowding, Prison Development Board, segregation of prisoners, and other concerns.
Orissa High Court Issues Directions To Govt For Improving Public Healthcare Facilities In State
Case Title: Chittaranjan Mohanty v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 83
The Orissa High Court held hearing on a holiday (21st May 2022) to review the lacunae in the Public Healthcare Facilities of the State. It also issued a slew of directions to the State Government for improvement of conditions in the government hospitals. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik expresses serious disappointment over unavailability of basic medical facilities and observed,
"Nearly six months have been elapsed since the visits were undertaken by the teams of the DLSAs. The Court finds from the reports submitted by them that in many of the districts urgent corrective action requires to be taken. In many DHHs, CHCs and PHCs not all the doctors shown on the rolls of the facility were present; in many no nurses were found and staff were absent. Lack of cleanliness is a major issue as are lack of functional, clean toilets. Even the availability of clean drinking water is a big problem. In many places the registers for stocks of drugs were either not available or not properly maintained. It is a matter of concern that, in many of the DHHs, CHCs and PHCs ambulances were not available."
Entitlement Of Employee To Salary/ Pension Is Intrinsic Part Of His Rights To Life & Property Under Articles 21 & 300A: Orissa High Court
Case Title: Sovakar Guru v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 89
The Orissa High Court held that entitlement of an employee or an ex-employee to his salary or pension, as the case may be, is an intrinsic part of his right to life under Article 21 and right to property under Article 300A of the Constitution. While allowing payment of interest on the arrears of a retired government employee, a Single Bench of Justice Sanjeeb Kumar Panigrahi observed,
"Moreover, the employees cannot be allowed to suffer because of inaction on the part of the employer for no fault of the employees. The employee is definitely entitled to get the payment as per the service conditions on due dates and/or in a given case within reasonable time. The employees, had the payment received within time and/or on due dates, could have utilised the same for various purposes."
"Transgender Has Every Right To Choose Gender": Orissa High Court Orders Family Pension To Transwoman
Case Title: Kantaro Kondagari @ Kajol v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 90
The Orissa High Court ordered grant of family pension to a transwoman, who was allegedly discriminated on the basis of her gender while allowing pensionary benefits after the death of her parents. A Single Bench of Justice Aditya Kumar Mohapatra held,
"…this Court is of the considered view that the petitioner as a transgender has every right to choose her gender and accordingly, she has submitted her application for grant of family pension under Section 56(1) of Odisha Civil Services (Pension) Rules, 1992. Further such right has been recognized and legalized by judgment of the Hon'ble Apex Court in NALSA's Case (supra) and as such, the law laid down by the Hon'ble Supreme Court is binding on all."
No Absolute Rule That One Ad-Hoc Employee Can Never Be Replaced By Another Ad-Hoc Employee: Orissa HC Distinguishes SC Judgment
Case Title: Siba Prasanna Pathy v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 94
The Orissa High Court held that there is no absolute rule that one ad-hoc/temporary employee can never be replaced with another ad-hoc employee. It further observed that an ad-hoc employee has no vested right to his post and he can anytime be replaced by any other ad-hoc employee, if found incompetent. In holding so, the Court apparently differed with the dictum laid down by the Supreme Court in Manish Gupta and Ors. v. President, Jan Bhagidari Samiti and Ors. While dismissing a challenge against termination of a guest faculty, a Single Judge Bench of Justice Sanjeeb Kumar Panigrahi observed,
"…there cannot be any absolute rule or principle that one ad hoc or temporary appointee can never be replaced by another ad hoc or temporary appointee. For example, if a temporary appointee in service is incompetent, can he not be allowed to replace with a competent or more competent person. This Court sees no reason why the competent person cannot be appointed in place of the incompetent person, even if both appointments are ad hoc or temporary appointees."
Not Compulsory To Forward Claims For Victim Compensation To Administration Through 'Legal Services Authority': Orissa High Court
Case Title: Sukuludei Santa v. Govt. of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 100
The Orissa High Court held that it is not mandatory for a victim to forward his/her claims for compensation to the appropriate authority through the Legal Services Authorities (LSA). Further, it clarified that the LSAs are there only to provide assistance to claimants for making representations to the administration. A Single Judge Bench of Justice Arindam Sinha observed,
"It could not be shown that Legal Services Authorities Act, 1987 mandates claimants of victim compensation to forward their claims through the authority to the administration. The administration has a policy on compensation. The authority merely renders assistance to claimants in moving the administration."
Can't Issue Writ Of Habeas Corpus In Child Custody Matters Between Husband & Wife: Orissa High Court
Case Title: Koushalya Das v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 103
The Orissa High Court declined to issue the writ of habeas corpus in favour of a woman who claimed custody of her minor child from her husband. A Division Bench of Justices Sangam Kumar Sahoo and Murahari Sri Raman widely noted the observations made by the Apex Court in Tejaswini Gaud & Ors. v. Shekhar Jagdish Prasad Tewari & Ors., while discouraging issuance of habeas corpus for granting custody of child from one parent to another. It further noted,
“In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the Court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ Court which is summary in nature. What is important is the welfare of the child. In the writ Court, rights are determined only on the basis of affidavits. Where the Court is of the view that a detailed enquiry is required, the Court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the Civil Court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.”
State Vigilance Department Can't Be Completely Exempted From Operation Of RTI Act: Orissa High Court
Case Title: Subash Mohapatra & Ors. v. State of Odisha & Anr.
Citation: 2022 LiveLaw (Ori) 104
In a significant decision, the Orissa High Court held that the Vigilance Department of the State cannot be completely exempted from the operation of the Right to Information Act, 2005. It directed that information pertaining to allegations of corruption and human rights violations and also information pertaining to activities undertaken by the Department, which are not sensitive or confidential, should be disclosed under the RTI. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,
“Thus, it is seen that what cannot be kept outside the purview of disclosure under the RTI Act as spelt out in the proviso to Section 24(4) of the RTI Act is information pertaining to "allegations of corruption and human rights violations" in both sub-categories of cases as noted hereinbefore viz., cases generally concerning allegations of corruption and human rights violations which are under investigation by or have been investigated by the concerned intelligence and security organisations established by the State Government’ or cases concerning allegations of corruption and human rights violations involving those working for or employed by the said organisations established by the State Government.”
Orissa High Court Disposes Pending Case Challenging Puri Jagannath Temple Corridor Project In View Of Supreme Court Decision
Case Title: Dillip Kumar Baral v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 105
The Orissa High Court disposed of the pending writ petition challenging Puri Shree Jagannath Temple Corridor Project, in view of the decision of the Apex Court in Ardhendu Kumar Das v. State of Odisha. Notably, in that case, the Supreme Court dismissed two petitions filed against some construction works undertaken by the Odisha Government in the adjacent area of the centuries-old holy shrine. Not only those petitions were dismissed, but heavy costs of one lakh each were imposed on both the petitioners. While disposing of the case, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik categorically stated, “In view of the above observations of the Supreme Court of India in the aforementioned order dated 3rd June, 2022 concerning the present writ petition i.e., W.P.(C) No.6257 of 2022, it is not possible for this Court to continue to entertain the said petition as a PIL.”
Human Rights Commission Can Only 'Recommend' Compensation U/S 18 Of Protection Of Human Rights Act: Orissa High Court
Case Title: State of Odisha & Ors. v. Radhakanta Tripathy & Anr.
Citation: 2022 LiveLaw (Ori) 109
The Orissa High Court held that Section 18 of the Protection of Human Rights Act, 1993 empowers Human Rights Commission only to 'recommend' and not to direct compensation. Notably, the Section provides for steps to be taken by the Commission "during and after inquiry". A Single Bench of Justice Arindam Sinha observed,
"Section 18 provides for steps during and after inquiry. As aforesaid there was omission by the Commission to conduct inquiry and as such section 18 could not be invoked by it for any of the steps to be taken thereunder. Having said that, the provision only empowers the Commission to recommend."
No Legal Mandate That Two Years Must Be Added To Outer Age Limit Determined By 'Ossification Test': Orissa High Court
Case Title: Gobardhan Gadaba @ Gadava v. State of Odisha
Citation: 2022 LiveLaw (Ori) 110
The Orissa High Court held that there is no law that two years mandatorily be added to the outer limit of age as determined by 'ossification test'. While rejecting an argument to that effect, a Single Judge Bench of Justice Sashikanta Mishra observed,
"…there is no law which mandates that in each and every case two years have to be added to the outer age limit determined by the ossification test. It would rather be prudent for the Court to accept the higher range of the age determined by the ossification report which, in the instant case is 16 years."
Bar Against 'Inter-District Transfer' Not Applicable To Govt Teachers With Disabilities: Orissa High Court
Case Title: Naba Krishna Mahapatra v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 111
In an important decision, which can be tagged as a remarkable quantum leap in the field of disability jurisprudence, the Orissa High Court held that bar against 'inter-district transfer' cannot be made applicable to teachers who are recognised as persons with disabilities. A Single Judge Bench of Dr. Justice Sanjeeb Kumar Panigrahi observed,
"Hence, it may be concluded that the bar under 1977 rules for inter district transfer shall not be applicable on a person with disability. Moreover, in view of provision of Right of Persons with Disability Act, 2016, read with the Govt. Notification (supra) permits inter district transfer of a person with disability.”
Objections To Admissibility Of Secondary Evidence Can Be Decided At Judgment Stage, Piecemeal Trial At Pre-Argument Stage Not Necessary: Orissa HC
Case Title: Babita Satpathy @ Mishra v. Sitanshu Kumar Dash & Ors.
Citation: 2022 LiveLaw (Ori) 117
The High Court held that objections raised as to "mode of admissibility" of secondary evidence can be adjudicated upon by Trial Courts at the stage of judgment and there is no strict rule that it must be decided as and when objection is raised or before the commencement of arguments. A Single Judge Bench of Justice Krushna Ram Mohapatra observed,
"It appears that the objection with regard to mode of admission of the document was raised, which is marked as exhibits by filing the instant petition. Since the learned trial Court has kept the objection open to be decided at the time of argument no prejudice will be caused to the Petitioners. Further, once a document has been exhibited with objection the same cannot be expunged from the evidence of the party unless circumstances thereto are established."
S.14A SC/ST Act | Order Taking Cognizance & Issuing Summons Is Appealable As It Is An 'Intermediate Order', Not 'Interlocutory Order': Orissa HC
Case Title: Smrutikant Rath & Ors. v. State of Odisha & Anr.
Citation: 2022 LiveLaw (Ori) 121
The High Court held that an order taking cognizance and issuing summons for offences alleged under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is an 'appealable order' in terms of Section 14-A(1) of the Act. A Single Judge Bench of Justice Aditya Kumar Mohapatra further held that such order cannot be classified as 'interlocutory order' as the same qualifies to be an 'intermediate order'.
“…this Court has no hesitation to hold that the order taking cognizance and issuing summons to the accused person is not clearly an interlocutory order, but an intermediate order. Therefore, the same is appealable in view of the provisions contained under Section 14-A(1) of the S.C. and S.T. (PoA) Act."
Also Read: SC/ST Act | Application U/S 482 CrPC Against Orders Of Cognizance & Issuance Of Summons Maintainable: Orissa HC Differs From Allahabad HC
No Necessity To Give Hearing Before Compulsorily Retiring Judicial Officers Under 2007 Service Rules: Orissa High Court
Case Title: Nilakantha Tripathy v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 126
The Orissa High Court upheld a notification issued by the Government of Odisha, which compulsorily retired a Chief Judicial Magistrate ('CJM') from his service, citing the step to have been taken 'in public interest'. While affirming such notification, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik also held that compulsory retirement is not a punishment; thus, there is no need to give prior hearing to the concerned officer before notifying such retirement. It observed,
"It is now well settled that compulsory retirement is not a punishment and the necessity of giving a hearing to the Petitioner prior to such decision being taken does not arise. This has been explained in a large number of cases including Baikuntha Nath Das v. Chief District Medical Officer, Baripada, (1992) 2 SCC 299…"
S. 172(3) CrPC | Accused Has No Right To Access Case Diary: Orissa High Court
Case Title: Shakti Singh v. State of Odisha
Citation: 2022 LiveLaw (Ori) 130
The Orissa High Court clarified that an accused has no right to access 'case diary', as there is a strict bar under Section 172(3) of the Code of Criminal Procedure ('Cr.P.C.'). A Single Judge Bench of Justice Sashikanta Mishra observed,
"The matter therefore needs to be viewed with all seriousness by all concerned, not only by the concerned courts but also the office of the Court Sub-Inspector and the concerned Investigating Officer under whose custody the case diary is supposed to be kept. While the Code of Criminal Procedure provides that the accused is entitled to a fair trial, the same does not mean that the accused can be given an unfair advantage contrary to the provisions of the Code."
Legal Heirs Can Substitute Complainant In Complaint Cases & Pursue Prosecution Upon His Death: Orissa High Court
Case Title: Sanjit Kumar Mishra & Ors. v. Ranjit Mishra
Citation: 2022 LiveLaw (Ori) 134
In a landmark decision, the Orissa High Court ruled that legal heirs of a complainant, where a criminal case is instituted upon complaint, can substitute him upon his death and pursue the case on his/her behalf. A Single Judge Bench of Justice Sashikanta Mishra held,
"…notwithstanding absence of a specific provision, the statutory intent of the provisions of the Code is not to foreclose the right of a person to continue with the prosecution upon death of the complainant. In other words, it is impliedly acknowledged that the victim of a crime may die but the crime committed against him does not. Nor does the guilt of the offender get washed away only because the victim is no more. On the contrary, the offender would still remain liable to be prosecuted for his deeds and punished, if found guilty."
S.278 CrPC | Witness Can't Be Allowed To Seek Correction In Evidence After He Signs Deposition Sheet: Orissa High Court
Case Title: Siddhachit Roy v. Rabindra Kumar Mallick
Citation: 2022 LiveLaw (Ori) 138
The High Court held that a witness cannot be allowed to seek modification or correction in his deposition statements, which are recorded through his examination-in-chief and cross-examination, after the evidence/ statements were read over to him and subsequently, he puts his signature on deposition sheets. While disallowing a revision petition against denial of such relief, a Single Judge Bench of Justice Sangam Kumar Sahoo held,
"The object of the reading over prescribed by this section, is not to enable the witness to change his story but to ensure that the record faithfully and accurately embodies the gist of what the witness actually said. The section is not intended to permit a witness to resile from his statement in the name of correction. The object underlying section 278 of the Code is to obtain an accurate record of what a witness really means to say and to give him an opportunity of correcting his evidence taken down by the Court, if any."
Judicial Magistrate Can Take Cognizance Even Against Persons 'Not Charge-Sheeted' For Offences Exclusively Triable By Court Of Sessions: Orissa HC
Case Title: Mama @ Bidyut Prava Khuntia v. State of Orissa
Citation: 2022 LiveLaw (Ori) 141
The High Court clarified that a Judicial Magistrate has the power to take cognizance of an offence essentially and exclusively triable by the Court of Sessions vis-à-vis an accused person who is not 'charge-sheeted'. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Chittaranjan Dash cited the Constitution Bench decision of the Apex Court in Dharam Pal v. State of Haryana, wherein it was observed,
"…the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(2) Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter."
Close Relative Of Arbitrator Must Be 'Controlling The Company' To Make Him Ineligible: Orissa High Court
Case Title: Abhay Trading Pvt. Ltd., Mumbai v. National Aluminium Company Ltd., NALCO, Bhubaneswar
Citation: 2022 LiveLaw (Ori) 147
The High Court clarified that to make an arbitrator ineligible under Clause 9 of the Seventh Schedule read with Section 12(5), the Arbitration and Conciliation Act, 1996, the arbitrator must have a close family relationship with a party and in case of companies, he must have a close relation with the person(s) in the management who should be "controlling the company". A Single Bench of Chief Justice Dr. S. Muralidhar observed,
"…Clause-9 of the Seventh Schedule requires the Arbitrator to have a close family relationship, in the case of companies, with "the persons in the management and controlling the company". Therefore, there is a two-fold requirement: not only has the person to be in management but such person should also be controlling the company."
[Compassionate Appointment] Married Daughters Can't Be Denied Benefit Under Rehabilitation Assistance Scheme: Orissa High Court
Case Title: Basanti Nayak v. State of Orissa & Ors.
Citation: 2022 LiveLaw (Ori) 150
In an important verdict, the Court held that a 'married daughter' cannot be denied the benefits under the Rehabilitation Assistance Scheme after the death of her father. While reaffirming the rights of a married daughter to seek compassionate employment upon death of her father, a Single Bench of Dr. Justice Sanjeeb Kumar Panigrahi observed,
"…this court is of the view that marriage by itself is not a disqualification and impugned policy of the State Government barring and prohibiting the consideration of the 'married' daughter from seeking appointment under the Rehabilitation Assistance Scheme, merely on the ground of marriage, is plainly arbitrary and violative of constitutional guarantees, as envisaged in Articles 14, 15, and 16(2) of the Constitution of India."
'Acute Failure Of Doctors, Shocks Judicial Conscience': Orissa High Court Awards ₹10 Lakh Compensation To Family Over Woman's Maternal Death
Case Title: Sambara Sabar v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 155
In an important judgment, the Orissa High Court directed the State Government to constitute an Advisory Board of health care experts to draw up a 'Comprehensive Action Plan' to address the issue of maternal deaths. It also ordered the Government to come up with a Scheme or Policy to address the need for providing redress including award of compensation for every avoidable maternal death and the fixing of responsibility in a time-bound manner. The above directions were issued by a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Murahari Sri Raman while deciding the case relating to death of a tribal lady, who died in 2015 at the time of delivery.
"In the present case, there has been an acute failure of the entire teams of doctors at each level of the health care system in Odisha to provide timely and adequate care and treatment to the deceased as pointed out by the EC. It shocks the judicial conscience that a poor tribal woman had been carrying a dead foetus for a week prior to her death with not one person in the health care system being able to provide her the needed care and treatment and which neglect resulted in her inevitable death. There has been a clear violation of the fundamental right to health of the deceased which constitutes an integral part of the right to life guaranteed in Article 21 of the Constitution of India", the Bench observed.
Family Court Can Restore Application U/S 125 CrPC After Its Dismissal For Default: Orissa High Court
Case Title: Sachindra Kumar Samal v. Madhusmita Samal @ Swain & Anr.
Citation: 2022 LiveLaw (Ori) 156
The Orissa High Court held that the Family Courts possess the 'inherent power' to restore a Section 125 CrPC application dismissed earlier for non-prosecution. While holding so, a Single Bench of Justice Radha Krishna Pattanaik observed,
"When a proceeding of maintenance is dismissed on account of default and if it is claimed that the court lacks jurisdiction to restore it in absence of any provision, how it could have been dismissed for non-prosecution, again for having no provision in the Cr.P.C. According to the Court since such is action is predominantly civil in nature, the power to restore a proceeding under Section 125 Cr. P.C. is inherent."
498A IPC Case Can't Be Quashed Under Section 482 CrPC Merely Because Family Court Called Marriage Invalid In Maintenance Proceedings: Orissa HC
Case Title: Jaga Sarabu v. State of Orissa & Anr.
Citation: 2022 LiveLaw (Ori) 157
The High Court held that charge under Section 498-A of the Indian Penal Code cannot be quashed in exercise of jurisdiction under Section 482 CrPC against a husband merely because Family Court, while deciding an application for maintenance under Section 125 Cr.P.C., has given a finding that she is not his wife. While refusing to quash an order taking cognizance under Section 498-A against the petitioner, Justice Gourishankar Satapathy said:
"…it would not be proper for a Court to undertake hair splitting scrutiny of materials on record in a proceeding under section 482 of Cr.P.C. to conclude that the proceeding under section 498-A of IPC is not maintainable for want of valid marriage which would not only encourage harassment of women but also demoralizes them."
[S. 138 NI Act] Person In Charge Of Trust Can't Be Arraigned As Accused Without Impleading The Trust Itself: Orissa High Court
Case Title: Bijaya Manjari Satpathy v. State of Orissa & Ors.
Citation: 2022 LiveLaw (Ori) 158
A Single Judge Bench of Justice Gourishankar Satapathy held that a person in charge of a 'Trust' cannot be impleaded as an accused for dishonour of cheque, punishable under Section 138 of the Negotiable Instruments Act, if the 'Trust' itself is not arraigned as a party as per the mandate of Section 141 of the Act. Section 141 prescribes liabilities of companies for dishonour of cheques.
"Institutional Lethargy Has Crept Into Police Stations": Orissa High Court Issues Guidelines For Compulsory Registration Of FIRs
Case Title: JB v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 161
A Single Judge Bench of Dr. Justice Sanjeeb Kumar Panigrahi issued a slew of instructions/guidelines to the Director General of Police, Odisha (DGP) for compulsory registration of First Information Reports (FIRs), requiring him to forward the same to all the police stations of the State. Expressing disappointment over frequent cases of non-registration of FIRs by police officers, the Court issued the following six instructions:
"a) Whenever a person comes to the Police Station with a complaint, the Officer posted at the Police Station shall compulsorily receive the complaint and endorse the complaint by way of a receipt or by way of stamp acknowledging the said receipt at that Police Station with time and date. The Police Officer shall further insist a photo copy of the said complaint to be given back to the complainant.
b) While a prescribed format is not necessary, it is essential that the In-charge of the Police Station shall indicate the minimum information required to substantiate a complaint and shall suggest what supporting documents are relevant and can add weight to the complaint.
c) The concerned official must be courteous to the complainant who approaches to the Police station and furnish a pen and a paper to the complainant, on request.
d) The complainant may also be given a comfortable space to sit and write the complaint.
e) If the person is illiterate, the complaint must be dictated by the complainant to the officer-in-charge who shall reduce the same in writing and dictate it to the complainant before it is signed and stamped by the officer.
f) A copy (photo-copy) of the FIR filed must be returned to the complainant by the concerned officer free of cost."
S. 173(8) CrPC | Magistrate Not Barred To Order Further Investigation After Taking Cognizance, Until Trial Commences: Orissa HC Reiterates
Case Title: Manoj Kumar Agarwal v. State of Odisha
Citation: 2022 LiveLaw (Ori) 162
A Single Judge Bench of Chief Justice Dr. S. Muralidhar reiterated that the power of Judicial Magistrates to order further investigation under Section 173(8) of the Code of Criminal Procedure is not taken away only because cognizance was taken of an offence. While clarifying the position of law, it placed reliance on 2019's three-judge bench judgment of the Apex Court in Vinubhai Haribhai Malaviya v. The State of Gujarat, wherein after overruling certain previous contradictory judgments, the Court held,
“To ensure that a "proper investigation" takes place in the sense of a fair and just investigation by the police - which such Magistrate is to supervise - Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2); and which power would continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences.”