Orissa High Court Annual Digest 2022 [Citations 1-165]

Judgments/Orders Reported

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

Case Title: Binod 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.

'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."

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.

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."

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".

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.

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.

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."

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.

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.

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.

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) 12

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.

"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) 13

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.

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.

'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.

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."

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.

NDPS | Extension Beyond Statutory Period In Submitting Chargesheet Cannot Be Granted Without Giving Hearing To Accused: Orissa High Court

Case Title: Biru Singh v. State of Odisha

Citation: 2022 LiveLaw (Ori) 18

The High Court reiterated that it is mandatory to issue notice and provide fair hearing to accused before extending time beyond statutory period to file chargesheet in cases relating to offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). A Single Judge Bench of Justice Sashikanta Mishra relied upon Iswar Tiwari v. State of Odisha, 2020 (80) OCR 289, wherein the legal position as regards the provisions under Section 167(2) of Cr.P.C read with Section 36(A)(4) of the NDPS Act, was elaborately discussed by the Orissa High Court and it was held that the notice must mandatorily be issued to the accused and he must be produced before the Court whenever such an application is taken up and that where any such report occurs the question of it being contested does not arise and a right accrues in favour of the accused.

No Retrospective Effect Of Notification Imposing Custom Duty On Grant Of Conversion Of Vessels From 'Foreign Going' To 'Coastal Run': Orissa High Court Allows Customs Duty Exemption

Case Title: Great Eastern Shipping Company Ltd. & Anr. v. Union of India & Ors.

Citation: 2022 LiveLaw (Ori) 19

The High Court held that Notification imposing custom duty on grant of conversion of vessels from 'Foreign Going' to 'Coastal Run' is not applicable retrospectively. The Division Bench of Chief Justice Dr. S. Muralidhar and Justice B.P. Routray has observed that exemption notification dated 17th March, 2012 is only prospective in its application and that in respect of the import of the three vessels i.e. 'Jag Arnav', 'Jag Ratan' and 'Jag Rani' which were imported into India first on 30th April 2003, 13th November, 2007 and 26th August, 2011 respectively, Entry 462 read with Condition No. 82 of the notification dated 17th March, 2012 will not apply. The court observed that a distinction has to be made between levy and customs duty on the value of ship stores that are carried on the vessel and are by themselves 'goods'.

Army Pension Regulations | Can't Deny Condonation Of Short-Fall In Pensionable Service Of A Voluntarily Discharged Serviceman U/R 125(a): Orissa HC

Case Title: Ex-CFN Jagadish Chandra Mohanty @ Mohapatra v. Union of India & Ors.

Citation: 2022 LiveLaw (Ori) 20

A Division Bench of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik held that Regulation 125(a) of the Pension Regulations for the Army, 1961 cannot be employed to deny condonation of short-fall up to six months in pensionable period of service of a serviceman who was discharged on a voluntary basis. The Court observed, since Regulation 125(a) of the Pension Regulations for the Army is identically worded as Regulation 82(a) of the Pension Regulations for the Navy, the ratio of the decision of the Bombay High Court in Gurmukh Singh v. Union of India (decision dated 22nd November, 2006 in W.P. OAC No.430 of 2005) as affirmed by the Supreme Court in Union of India v. Surender Singh Parmar should be applied. As a result of which, Regulation 125(a) of the Pension Regulations for the Army cannot be relied upon by the respondents to deny to consider the case of the Petitioner for condonation of the short fall in the pensionable service up to six months.

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 has 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.

Blacklisting Of An Entity By Govt In A Contractual Matter Is Subject To Doctrine Of 'Proportionality': Orissa High Court

Case Title: M/s. Ram Kumar Agrawal Engineers Pvt. Ltd. v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 22

The High Court has ruled that the decisions of government to blacklist entities in contractual matters are subject to the 'doctrine of proportionality'. While allowing the writ petition filed against a blacklisting order, a Division Bench of Justices Dr. B.R. Sarangi and S.K. Panigrahi held that it is also well settled that the High Court, while exercising power of judicial review, would be reluctant to substitute its own opinion on the quantum of penalty or punishment imposed. However, if the High Court finds the punishment as imposed shockingly disproportionate, the interference with the same would be warranted even if it is a contractual dispute.

"Acted Out Of Sudden Provocation": Orissa High Court Converts Conviction U/S 302 to U/S 304 Part II, IPC Of A Man Accused Of Killing His Mother

Case Title: Gobardhan Pradhan v. State of Orissa

Citation: 2022 LiveLaw (Ori) 23

The Court converted the conviction of a person charged under Section 302 of IPC, for killing his own mother, to one of culpable homicide not amounting to murder under Section 304 Part II, IPC. While providing relief to the accused, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik observed,

"The fact also remains that the accused did not use any dangerous weapons. He first used the walking stick of the deceased herself and later a stone locally available. Clearly, he acted out of sudden provocation when his mother tried to dissuade him from going to the village. He did not try to flee after attacking her. He is also not shown to have any history of criminal behaviour."

Deposit Of Amount In No-Lien/Escrow Account Will Not Constitute 'Actual Payment' U/S 43B Of Income Tax Act: Orissa High Court

Case Title: M/s. Indian Metal and Ferro Alloys Ltd. v. Commissioner of Income Tax, Bhubaneswar

Citation: 2022 LiveLaw (Ori) 24

A Division Bench of the Court, comprising of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik, has ruled that deposit of amount in 'no-lien/escrow account' will not constitute 'actual payment' under Section 43-B of the Income Tax Act, 1961. The Section provides a list of expenses allowed as deduction under the head 'income from business and profession'. It states some expenses that can be claimed as deduction from the business income only in the year of actual payment. While denying relief to the appellant, the Court observed,

"A payment envisages a payer and a payee. If only one part is fulfilled viz., the payer has made the payment, but the payee has not received it, then it cannot be said that the sum has been 'actually' paid. While the Assessee as payer may have parted with the amount, it has not totally lost control over it. The payment has been made conditional and it has been ensured that if the Assessee ultimately succeeds in the litigation, the amount will not be actually paid to the State Government."

Income Tax Act | Interest Earned From Bonds Towards Late Payment Of Energy Bills Can Be Deducted As 'Power Profit' U/S 80-IA(4)(iv): Orissa High Court

Case Title: Odisha Power Generation Corporation Ltd. v. Asst. Commissioner of Income Tax, Circle 2(2), Bhubaneswar & Ors.

Citation: 2022 LiveLaw (Ori) 25

A Division Bench of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik held that interest earned from the bonds towards late payment of electricity bills can be deducted as 'power profit' under Section 80-IA(4)(iv) of the Income Tax Act, 1961 ("the Act"). The Court acknowledged the motive behind the enactment of the said provision. It noted that the very object of enacting Section 80-IA was to encourage setting up of an industry involved in the generation and distribution of electricity or any other form of energy and the production, manufacture and construction of articles specified in the 5th Schedule to the Act. The idea was to provide incentives for promoting efficiency in the industry.

Income Tax Deduction Not Allowable On Deposit In No-Lien/Escrow Account: Orissa High Court

Case Title: M/s. Indian Metal and Ferro Alloys Ltd. v. Commissioner of Income Tax, Bhubaneswar

Citation: 2022 LiveLaw (Ori) 26

A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik held that income tax deduction is not allowable on deposit in a 'no-lien' or 'escrow account'. It observed that while the assessee may not have furnished a bank guarantee, its deposit of the disputed electricity duty amount in a no-lien/escrow account was only to ensure that during the pendency of the litigation, the disputed amount was not in fact paid directly to the State Government. Therefore, the net result was no different from the kind of payment made by the assessee by furnishing bank guarantees in lieu of such disputed payment of duty. Therefore, the requirement of Section 43B of the Income Tax Act was not satisfied.

S.227 CrPC | Accused Must Be Discharged In Absence Of 'Grave Suspicion': Orissa High Court

Case Title: Shantanu @ Priyabrata Senapati v. State of Orissa

Citation: 2022 LiveLaw (Ori) 27

The High Court has recently held that there must be 'grave suspicion' and not mere 'suspicion' against the accused before the Court can frame charge against him. Otherwise, there will be 'sufficient ground' under Section 227 of CrPC to discharge the accused. While allowing the revision against a lower Court's order, a Single Judge Bench of Justice Sashikanta Mishra observed that to further explain, suspicion per se may be entirely in the realm of speculation or imagination and may also be without any basis, whereas grave suspicion is something which arises on the basis of some acceptable material or evidence. Only because there is no other explanation for the alleged occurrence, the needle of suspicion should point at the accused cannot be a reasonable basis to proceed with the trial against him.

Service Law | Govt. Employees Can't Be Removed From Service Without Following Due Statutory Procedures: Orissa High Court

Case Title: Akshay Kumar Nayak v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 28

A Single Judge Bench of Justice Sashikanta Mishra held that a person cannot be removed from his service without complying the relevant statutory pre-requirements. It observed that in so far as the Odisha Service Code is concerned there is a clear-cut statutory provision that even in a case of a Government Servant remaining absent from duty exceeding five years, he shall be removed from service but only after following the procedure laid down in the Rules. Law is well established that when the statute requires a thing to be done in a particular manner, the same is to be done in that manner or not at all. Therefore, notwithstanding the fact that the petitioner can be prima-facie held guilty of disobeying the orders of the authority by remaining continuously absent for more than five years, yet he cannot simply be removed without taking recourse to the prescribed statutory process.

"Affected The Right To Livelihood Of The Petitioner U/A 21": Orissa HC Reinstates A Physically Handicapped Teacher Who Was Removed After Appointment

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

Citation: 2022 LiveLaw (Ori) 29

The High Court reinstated a physically handicapped person who was engaged as a teacher, but was removed later, on the basis of a report of Appellate Board which found him scarcely disabled. While granting relief to the petitioner, a Single Judge Bench of Justice Sashikanta Mishra wrote,

"It must be kept in mind that the State is supposed to be a model employer and as such, cannot be allowed to take actions that are arbitrary and not countenanced in law. In the instant case, the Opposite Party-authorities are guilty of approbation and reprobation, i.e. of blowing hot and cold at the same in the manner as described above thereby adversely affecting the right to livelihood of the Petitioner included under Article 21 of the Constitution of India."

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 has held that bar under Section 362 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."

Insurance Company Can't Deny Claim Merely Because Person Insured Is Allegedly Involved In Multiple Motor Accidents: Orissa High Court

Case Title: The Divisional Manager, National Insurance Co. Ltd. v. Sunil Majhi & Anr.

Citation: 2022 LiveLaw (Ori) 31

The High Court has held that merely because a person driving a vehicle is involved in multiple road accidents, at different point in time, is no reason for the Insurance company to deny his claim. A Single Judge Bench of Justice B.P. Routray observed,

"no logic is there in the contention of the Appellant that because the accused is involved in more than one accident at different points of time, the claim of compensation contemplated under Sec.166 of the M.V. Act would be nullified on that ground."

MV Act | Multipliers Under Second Schedule To Be Applied Even If At The Time Of Accident Those Were Not In Force: Orissa High Court

Case Title: The Divisional Manager, New India Assurance Co. Ltd., Bhubaneswar v. Sauri Das & Ors.

Citation: 2022 LiveLaw (Ori) 32

A Division Bench of the High Court, comprising of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik, has held that the 'multipliers' provided under the second schedule to the Motor Vehicles Act, 1988 can be applied even in the cases where at the time of adjudication the schedule was in force, though it was not operational at the time of accident. The Bench observed,

"The MV Act being a statute intended to benefit accident victims, the Schedule thereto ought to be applied in pending cases of accident victims even if the accident occurred at a time when the Schedule was not in force."

S. 194-I Income Tax Act | TDS Can't Be Deducted In Absence Of Payment Of Rent: Orissa High Court

Case Title: Commissioner of Income Tax, Bhubaneswar v. Western Electricity Supply Company of Odisha Limited (WESCO)

Citation: 2022 LiveLaw (Ori) 33

The High Court has held that in absence of payment of rent, the obligation to deduct tax at source ('TDS') under Section 194-I of the Income Tax Act, 1961 does not arise at all. Notably, the said provision deals with 'TDS on rent'. While dismissing an Income Tax Appeal, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik observed,

"In absence of there being any payment of rent or even deemed rent by the Respondents to OPTCL there was no obligation under Section 194-I of the IT Act to deduct TDS from the wheeling charges paid to OPTCL."

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 has 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."

Odisha Judicial Service: High Court Turns Down Plea To Relax 'Upper Age Limit'

Case Title: Pratap Kumar Bhuyan v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 35

A Division Bench of the High Court comprising of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik dismissed a writ petition which sought for relaxation in the 'upper age limit' of the Odisha Judicial Service (OJS), in similar line with the increase in the upper age limit for recruitment to 'civil posts' of the state. The Court held that in the present case, it has not been found expedient for such relaxation to be extended. It also noted that under Rule 41 of the OSJS and OJS Rules while certain provisions of the Odisha Civil Services (Classification, Control & Appeal) Rules, 1962 and the provisions of the Odisha Service Code have been made applicable, but the Odisha Civil Service (Fixation of Upper Age Limit) Rules, 2022 and the amendments thereto have not been made applicable to the OJS and OSJS.

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 has 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."

Passport Renewal Request Can't Be Rejected On Sole Basis Of Pendency Of Criminal Cases: Orissa High Court

Case Title: Asutosh Amrit Patnaik v. State of Orissa & Ors.

Citation: 2022 LiveLaw (Ori) 37

The High Court has held that mere pendency of criminal cases cannot be the sole ground to deny renewal of passport of a person. A Single Judge Bench of Justice Biswanath Rath observed that there is in fact no restriction in the renewal of the passport or even grant of passport in the pendency of the criminal proceeding involving the party concerned which may be a time-based renewal or grant. The Court relied upon multiple cases to arrive at the aforesaid conclusion, including the recent judgment of the Supreme Court in Vangala Kasturi Rangacharyulu v. Central Bureau of Investigation.

Second Trial Not 'Double Jeopardy' If Offences Different, Though Arose Out Of Same Set Of Facts: Orissa High Court

Case Title: Indrajit Sengupta & Anr. v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 38

The Orissa High Court clarified that a second trial for offences, other than what was tried in the first trial, does not attract 'double jeopardy' only because both set of offences arose out of same set of facts. A Single Judge Bench of Justice Radha Krishna Pattanaik observed,

"The expression 'same offence' appearing in Section 300 Cr.P.C. read with Article 20(2) of the Constitution of India means that the offence for which the accused has been tried and the offence for which he is again being tried must be identical. The subsequent trial is barred only if the ingredients of the two offences are identical and not when they are different even though may have resulted from the commission or omission arising out of the same set of facts."

S.138 NI Act | Court Can Take Cognizance Of Complaint Based On Notice Pursuant To 'Re-Presentation' Of Cheque: Orissa High Court

Case Title: Sri Gadadhar Barik v. Sri Pradeep Kumar Jena & Anr.

Citation: 2022 LiveLaw (Ori) 39

The High Court held that Court can take cognizance of a complaint filed under Section 138 of the Negotiable Instruments Act, 1881 for 'cheque bounce' on the basis of a notice issued pursuant to presentation of a cheque for encashment for the second time and its subsequent dishonour. A Single Judge Bench of Justice Radha Krishna Pattanaik observed,

"...if the entire purpose underlined Section 138 of the N.I. Act is to compel the drawers to honour their commitments made in course of business or other transactions, there is no reason why a person who has issued a cheque which is dishonoured and who failed to make payment despite statutory notice served upon him should be immune to prosecution simply because the holder of the cheque had not rushed to the court with a complaint based on such default or for the reason that the drawer has made the holder defer prosecution promising to make arrangements for funds or on account of any other similar situation."

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."

"Too Harsh To Send Them To Prison": Orissa HC Extends Benefits Of Probation Of Offenders Act To Convicts In '18 Years Old' Grievous Hurt Case

Case Title: Rohita Mirdha & Ors. v. State of Orissa

Citation: 2022 LiveLaw (Ori) 42

The High Court upheld conviction of three accused persons in an '18 years old' grievous hurt case and at the same time extended the benefits of the Probation of Offenders Act to exonerate them from any further imprisonment. While taking the view that sending them to prison would be 'too harsh', a Single Judge Bench of Justice Sashikanta Mishra observed,

"The case record reveals that after being arrested, the petitioners have spent some days in custody. Undoubtedly, 18 years have passed in the meantime. Therefore, taking into consideration the social background of the petitioners and lack of any criminal antecedents to their names, this Court also feels that it would be too harsh to send them to prison at this distance of time to serve the remaining part of the sentence. As such, it is deemed proper to extend the benefit of the P.O. Act to the petitioners."

Pre-Payment Charges Can't Be Imposed By Bank Without Giving Prior Information Of The Same: Orissa High Court

Case Title: M/s. Salubrity Biotech Ltd. & Anr. v. Bank of Baroda, Vadodara & Ors.

Citation: 2022 Live Law (Ori) 43

The Orissa High Court has held that 'pre-payment charges' cannot be imposed by the banks without furnishing prior information about the same. While striking down such an imposition, a Single Judge Bench of Justice Arindam Sinha observed,

"…there is also no evidence that the referred circular was disclosed as attachment to the sanction letter. In facts and circumstances above, Court is satisfied that the object of transparency in grant of credit facilities, required to be fulfilled by the guidelines issued by the Reserve Bank of India, were not fulfilled in this case. Imposition of pre-payment charges therefore cannot be sustained."

On Procedural Aspects The Arbitration Act Must Yield To The Provisions Of The Commercial Courts Act: Orissa High Court

Case Title: M.G. Mohanty & Anr. v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 44

The High Court observed that the Court for the purpose of deciding all the applications arising out of the arbitration agreement between the parties would be the Commercial Court as defined under the Commercial Courts Act which need not necessarily be the Principal Civil Court as provided under the Arbitration Act. The Court observed that the jurisdiction of the Commercial Court can be conferred on a judicial officer subordinate to the rank of a District Judge, i.e., the Principal Civil Judge notwithstanding anything contained in S. 2(1)(e) of the Arbitration Act. The Division Bench of Justice S. Muralidhar and Justice R.K. Pattanaik further observed that in so far as the procedural aspects are concerned the Arbitration Act must yield to the provisions of the Commercial Courts Act.

Writ Petition Is Maintainable Against The Award Of The MSME Council Which Failed To Give A Hearing On Limitation: Orissa High Court

Case Title: M/s Bajaj Electricals Ltd. versus Micro Small and Enterprises Facilitation and Anr.

Citation: 2022 LiveLaw (Ori) 45

The High Court observed that a writ petition is maintainable against an award rendered by the MSME Council under Section 18 of the MSMED Act wherein the petitioner was not given a hearing on a material issue regarding the limitation of the substantive claims. A Single Bench of Justice Arindam Sinha observed that in cases where an award is passed without hearing a party, the availability of an alternative remedy to challenge the award under Section 19 of the MSMED Act r/w S. 34 of the Arbitration Act shall not be a ground to dismiss the writ petition as compelling the petitioner to challenge the award would require him to comply with the requirement of deposit of 75% of the amount awarded.

Writ Court Can't Bestow Legal Right On A Consumer To Receive Compensation: Orissa High Court

Case Title: Pramod Kumar Rout v. The Superintending Engineer Electrical Circle & Ors.

Citation: 2022 LiveLaw (Ori) 46

A Single Judge Bench of Justice Arindam Sinha held that a writ Court like High Court cannot exercise its jurisdiction to pronounce on a legal right of a person to receive compensation, especially when there is no policy available to that effect. The Court noted that the petitioner's grievance, in the instant petition, seems to be for a wrongful disconnection and therefore, he prayed for compensation. He was unable to disclose a policy of the supplier regarding payment of compensation. The supplier said that it does not have a policy. Hence, in the given circumstances, the Court held that a writ Court cannot pronounce on a legal right of petitioner to receive compensation. Therefore, it advised the petitioner to approach the Civil Court and prove wrongful disconnection for decree of compensation.

Orissa High Court Dismisses Challenge To Notification Compulsorily Retiring A Former Additional District & Sessions Judge

Case Title: Pradeep Kumar Pattnaik v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 47

The High Court has dismissed challenge to a notification which notified the decision to compulsorily retire a former Additional District & Sessions Judge (AD&SJ) of the Odisha Superior Judicial Service (OSJS). While upholding the said notification, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik held that it is entirely possible that he received his promotions in due course, but the parameters that weigh with the Court when it comes to retaining a Judicial Officer in service after attaining the ages of fifty years, fifty-five years and fifty-eight years would be based on a review of the entire service career of the Officer and not just on a few years of performance. Thus, the grant of promotion a few months earlier would not ipso facto preclude such a review for the purposes of the decision to be taken regarding compulsory retirement of such Officer.

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."

Orissa High Court Stays Arrest Warrant Issued By NCST Against Keonjhar Collector Ashish Thakare

Case Title: Ashish Thakare v. National Commission for Scheduled Tribes & Ors.

Citation: 2022 LiveLaw (Ori) 49

The Court stayed an arrest warrant issued by the National Commission for Scheduled Tribes against the Collector & District Magistrate, Keonjhar. While staying the warrant, a Single Judge Bench of Justice Biswanath Rath observed that the Commission has prima facie exceeded its power in issuing warrant to the Collector.

Mr. Ashish Thakare, the Collector & District Magistrate of Keonjhar district, was summoned by the Commission to appear before it on 4^th April 2022 in relation to a case pertaining to non-payment of compensation and employment benefit to a tribal person in a land acquisition case. However, he did not appear. Notably, he had ignored summons of the Commission for at least 'eight times' during the last six months.

Orissa High Court Gives Clean-Chit To Jail Authorities In 2007 Kendrapara Custodial Death Case

Case Title: Smt. Bishnupriya Pattnaik & Anr. v. State of Orissa & Ors.

Citation: 2022 LiveLaw (Ori) 50

The High Court gave clean-chit to the Kendrapara sub-jail authorities in a custodial death case of 2007. It further denied to order compensation to the parents of the deceased as it did not find any foul play on part of the jail authorities. While dismissing the petition, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"There is no material on the basis of which this Court can come to a conclusion that the death of late Susanta Pattnaik was either due to any ill-treatment by the jail officials or due to negligence of the jail officials in not affording any timely medical treatment for his condition."

NDPS Act | Orissa High Court Grants Bail To Accused Who Was Not Heard Before Giving Extension To Submit Chargesheet

Case Title: Kartik Nag v. State of Odisha

Citation: 2022 LiveLaw (Ori) 51

The High Court set aside the orders passed by a Sessions-cum-Special Court which granted extension to submit chargesheet without providing hearing to accused and not even releasing him when he was entitled for 'default bail'. A Single Judge Bench of Justice Bibhu Prasad Routray held,

"It is the settled law that right guaranteed under Section 167(2) to the accused is indefeasible. This Court, in the case of Lambodar Bag (supra) after taking into consideration the principles decided in the case of Hitendra Vishnu Thakur v. State of Maharashtra, reported in A.I.R. 1994 SC 2623 and various other decisions, have answered on five points relating to release of an accused in terms of Section 36-A(4) of the N.D.P.S. Act read with Section 167(2) of the Cr.P.C. The answer is in affirmative in favour of the accused for his enlargement on bail for non-completion of investigation within the prescribed period of 180 days on different contingencies relating to extension of such period."

"Court Expects It Will Do The Right Thing": Orissa HC Expresses Faith On State Forest Department In A 'Force-Majeure' Dispute

Case Title: Basanta Kumar Sahoo v. Odisha Forest Department Corporation Ltd. & Ors.

Citation: 2022 LiveLaw (Ori) 52

In an interesting matter, the High Court has expressed faith on the Odisha Forest Department Corporation Ltd. in a dispute concerning a 'force-majeure' clause of a tender agreement. While denying the clause to be a 'mandate', a Single Judge Bench of Justice Arindam Sinha remarked that the petitioner has prayed for consideration as a result of devastation caused by super cyclone. It held, so far as Clause 3 of the tender terms and conditions is concerned, mention of force-majeure does not gain significance since the clause requires acceptance by the tenderer on inspection of the plantation. The super cyclone, being force-majeure, happened after inspection of the lot was taken by petitioner. Thus, it could not have been of information to be obtained on inspection, prior to the allotment. Further, it hoped that Opposite party no. 1 being an authority under Article 12 of the Constitution of India, it will do the right thing.

Single Injury To Vital Part Of Body Is Sufficient For Murder: Orissa HC Confirms Conviction Of Couple For Murder Of Relative

Case Title: Pradeep Kumar Nath & Anr. v. State of Odisha

Citation: 2022 LiveLaw (Ori) 53

The High Court has recently held that even a single injury to any vital part of human body can cause death and causing such death, having all knowledge of the most probable result, is murder. While dismissing an appeal preferred by a couple against their conviction for murder of one of their relatives, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"The victim though received a single injury but it was on a vital part. If it had been an injury on any other part of victim's body with no imminent danger of death, things would have been different, even if she had succumbed to it."

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 has 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."

S.167(2) CrPC | 'Date of Remand' To Be Excluded From Calculation Of Statutory Period For Granting 'Default Bail': Orissa High Court

Case Title: Manoranjan Das v. State of Orissa

Citation: 2022 LiveLaw (Ori) 55

The High Court reiterated that while counting the statutory period for the purpose of grant of 'default bail' under Section 167(2), Cr.P.C., the 'date of remand' has to be excluded. A Single Judge Bench of Justice Bibhu Prasad Routray held,

"Law is no more res integra on this issue. Recently in the case of M. Ravindran v.Intelligence Officer, Directorate of Revenue Intelligence, the Hon'ble Supreme Court has reiterated the law that the date on which the accused was remanded to judicial custody has to be excluded from calculation of statutory period of 180 days."

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.

CPC | No Prohibition On Third Party To Proceed Under Order 21 Rules 97, 99 & 101 Even After Rejection Of Impleadment Under Order 1 Rule 10: Orissa High Court

Case Title: Zobeda Khatun v. Md. Habibullah Khan & Ors.

Citation: 2022 LiveLaw (Ori) 57

The Court held that there is 'no prohibition' to bring an application under Order 21 Rules 97, 99 and 101 even after rejection of a similar application under Order 1 Rule 10, CPC. In view of these provisions, a Single Judge Bench of Justice Biswanath Rath observed,

"So far as the ground assailing the impugned order that once such Appeal is rejected in exercise of power under Order 1 Rule 10 of C.P.C., there is no further scope to bring the Application under Order 21 Rules 97, 99 & 101 of C.PC., this Court observes, exercise of power involving the Application under Order 1 Rule 10 of C.P.C. and exercise of power under the provision of Order 21 Rules 97, 99 & 101 of C.P.C. are completely different. Further scope under Order 21 Rules 97, 99 & 101 of C.P.C. is even much wider. In the circumstance, this Court finds, there is no prohibition in bringing such Application even after rejection of such endeavor in exercise of power under Order 1 Rule 10 of C.P.C."

Dying Declaration Made To Doctor Can't Be Discarded Only Because Certificate Of Fit Mental State Not Appended: Orissa High Court

Case Title: Anjari Rout v. State of Odisha

Citation: 2022 LiveLaw (Ori) 58

The High Court held that 'dying declaration' made to a doctor can neither be called to question nor should be doubted only because a certificate with regard to mental state of the deceased at the time of recording the declaration was not appended to it. While holding doctor to be 'the best person' to assess mental state of a victim, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"…P.W.10 was able to understand the language of the victim and being a doctor, he was the best person to assess her mental state. It is not that somebody else recorded the dying declaration of the victim and its acceptance is hence suspected for want of certificate of a doctor. Absence of a certificate on Ext.4 with regard to the mental state of the deceased, according to the Court, is not of much concern, when it was recorded by none other than a doctor himself."

S. 7-B, Industrial Disputes Act | Government Is Not Mandated To Refer Matters Of National Importance To National Tribunal: Orissa High Court

Case Title: M/s. Central Mine Planning & Design Institute Ltd. v. The Presiding Officer, Central Government Industrial Tribunal, Bhubaneswar & Anr.

Citation: 2022 LiveLaw (Ori) 59

The Court held that it is not mandatory for the Central Government to refer a matter of national importance to the National Industrial Tribunal for adjudication even if it satisfies the twin conditions mentioned under Section 7-B of the Industrial Disputes Act, 1947. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed, "It is not mandatory for the Central Government, even if the twin conditionalities are satisfied, to refer the disputes for adjudication to a National Tribunal. It may so happen that because of the placement of the parties, the dispute can well be adjudicated by a geographically proximate Tribunal."

Orissa High Court Directs State To Pay Rupees 10 Lakhs Compensation To Parents Of Boy Who Died By Falling In Drain During School Hours

Case Title: Sanjay Kumar Mohanty & Anr. v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 60

The Court ordered compensation of rupees ten lakhs to parents of a boy who died by falling into a drain during school hours while excreting. A Single Judge Bench of Justice Arindam Sinha observed, "The students coming from rural background were used to defecate in the open. In spite of toilet being available in the school premises, the teacher allowed the students to go outside the school premises, to relieve themselves. As such, contributory negligence in preventing the death is the inference."

Refusal To Delete Name Of A Party From The Arbitral Proceedings Is Not The Rarest Of Rare Case To Invoke Writ Jurisdiction: Orissa High Court

Case Title: State of Odisha v. M/s. Nayagarh Sugar Complex Ltd.

Citation: 2022 LiveLaw (Ori) 61

The Court held that a writ petition is not maintainable against an order of the arbitral tribunal refusing to delete the name of a party from the arbitration. The Single Bench of Justice Arindam Sinha held that to invoke the writ jurisdiction in an arbitration matter, the aggrieved party has to show that it is a 'rare of the rarest cases' and the interference of the Court is required and the order of the tribunal wherein it has refused to delete the name of a party does not fall within the rubric of rare of the rarest cases.

An Unreasoned Arbitration Award Is Against The Public Policy: Orissa High Court

Case Title: Jayaram Panda v. Project Director, M/s. National Highway Authority of India & Ors.

Citation: 2022 LiveLaw (Ori) 62

The High Court held that an unreasoned arbitral award would be against the public policy. The Court set aside the award as the arbitrator failed to give any reasons for reaching the conclusion in the award. The Single Bench of Justice Arindam Sinha held that an award bereft of reasons, goes against the mandate of the Act and therefore is against the public policy. The Court further held the reasons given by a Court while adjudicating a challenge under Section 34 of the Arbitration and Conciliation Act would not suffice the requirement of reasons in the award. The challenge is not akin to a first appeal being in continuation of the suit.

Orissa High Court Sets Aside Conviction Of Food Seller For Not Possessing 'Food Licence' In 28 Years Old Case

Case Title: Tengunu Sahoo & Anr. v. State of Orissa

Citation: 2022 LiveLaw (Ori) 63

A Single Judge Bench of Chief Justice Dr. S. Muralidhar acquitted a 'food seller' after 25 years of his conviction for not possessing 'food licence'. The Court set aside the order of the appellate court which convicted the petitioner under Section 7(iii) of the Prevention of Food Adulteration Act, 1954, which provides that any person selling article or food for which licence is prescribed, if sells without a licence would be committing an offence which is punishable under Section 16(1)(a)(ii) of the Act.

"Rare & Exceptional Case": Orissa HC Orders 'Re-valuation' Of Two Answers Of Candidate In Direct District Judge Recruitment Exam

Case Title: Amitav Tripathy v. Orissa High Court, represented by the Registrar General

Citation: 2022 LiveLaw (Ori) 64

The High Court ordered 're-valuation' of two answers given by a candidate who appeared in the examination for direct recruitment in the cadre of District Judge from the Bar. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik held that the wide power under Article 226 may continue to be available even though there is no provision for revaluation in a situation where a candidate despite having given the correct answer and about which there cannot be even slightest manner of doubt, he is treated as having given the wrong answer and consequently the candidate is found disentitled to any marks.

Law Universities Should Set Exemplary Principles, Not Indulge In Diluting Tactics: Orissa HC Raps NLUO For Not Adhering To Uniform Service Conditions For Employees

Case Title: Sabyasachi Mohanty v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 65

The Court came down heavily on National Law University of Odisha (NLUO) for applying different principles in case of different employees without having a codified service condition. It was adjudicating a plea by an ex-Assistant Finance Officer Mr. Sabyasachi Mohanty, who moved the Court against his arbitrary termination by the University. Expressing displeasure at the conduct of the University for setting different service standards for different employees, the Single Judge Bench of Justice Biswanath Rath remarked,

".. it also makes it clear that the University in the guise of no permanent service conditions on its own employee, is applying different standards in case of different employees which cannot get approval of law. Once you set a principle that should be followed till it is replaced only by a better principle, if any. The attitude of the University in the circumstance makes it clear that the University applies different principles in case of different employees, which ought to be prohibited."

Govt. Employee Has No 'Vested Right' To Seek Transfer/ Posting To A Particular Position Even If That Is Vacant: Orissa High Court

Case Title: Suryakanta Parida v. Odisha Public Service Commission & Ors.

Citation: 2022 LiveLaw (Ori) 66

A Single Judge Bench of Justice Sanjeeb Kumar Panigrahi held that a government employee has no 'vested right' to seek posting to a particular position even if the desired position is lying vacant. It observed, "Even if vacancies are there, the petitioner does not have any vested right to claim for such posts since it is under the absolute domain of the Government."

Orissa High Court Dismisses Contempt Petition Instituted By Govt. School Cook Against Former Gajapati Collector D.V. Swamy

Case Title: Golapi Pradhan v. D.V. Swami, Collector Gajapati & Anr.

Citation: 2022 LiveLaw (Ori) 67

The High Court dismissed a contempt petition filed by a Cook-cum-Attendant of a Government High School, against the former Collector-cum-District Magistrate, Gajapati Mr. D.V. Swamy. While rejecting contentions made by the petitioner, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik held, "Merely because the decision rendered by the Collector pursuant to the order of this Court went against the Petitioner, would not mean that the Collector wilfully disobeyed the order of this Court. The Court is, therefore, not satisfied that there has been any wilful disobedience of the order passed by it."

Child In Conflict With Law Gets Bail After 3 Yrs Custody; Orissa High Court Raps Police For 'Lackadaisical Attitude'

Case Title: Roshni Meher v. State of Odisha

Citation: 2022 LiveLaw (Ori) 68

The Court granted bail to a child in conflict with law after she remained in custody for over 'three years'. A Single Judge Bench of Justice V. Narasingh came down heavily on the police for its apathetic approach and observed, "Proceedings of the High Court cannot be held hostage to the whims of the investigating agency and for their lackadaisical attitude, rights of an accused cannot be marginalized, needs no emphasis."

Further, the Court hoped that necessary corrective action shall be taken so as to make the Police machinery more responsive to the needs of administration of justice.

Commission Paid To Persons Who Are Not Beneficial To Business Of Assessee Is Taxable: Orissa High Court

Case Title: M/s. Oripol Industries Ltd., Balasore v. Joint Commissioner of Income Tax, Balasore and Ors.

Citation: 2022 LiveLaw (Ori) 69

The High Court dismissed a challenge against an order of the Income Tax Appellate Tribunal, Cuttack (ITAT) which disallowed commission expenses as claimed by the appellant. It held that the appellant was not able to prove the expertise of persons to help him in business to whom the said commission was paid. Denying the arguments of the appellant, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"In the present case, all the persons to whom commission was paid were either Directors of the Company or their relatives. None of them is shown to have any expertise in procuring IOF from the Indian markets for enabling the Appellant to meet the purchase order placed on it for IOF. The amounts paid as commission were also not insubstantial."

Candidate In 'Direct District Judge Recruitment Exam' Fails To Qualify For Interview By 1 Mark After Revaluation; Orissa HC Dismisses Case

Case Title: Amitav Tripathy v. Orissa High Court, represented by the Registrar General

Citation: 2022 LiveLaw (Ori) 70

The High Court dismissed the writ petition filed by Mr. Amitav Tripathy, who had challenged marks assigned to him in the examination conducted for direct recruitment from the Bar in the cadre of District Judge. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik, in its order passed on 11^th May 2022, had observed the case to be "rare and exceptional" and had ordered the Registrar (Examinations) to send two questions for revaluation by a 'Law Expert'. The revaluated answer-sheet was produced before the Court. After such revaluation, the petitioner got only additional 0.5 mark, which was 1 mark less than the qualifying marks for the interview. Thus, the Court dismissed the petition and observed, "The net result is that the candidate gets just 0.5 mark additional for the answer to Question No.1 in Group-D. In all, therefore, the Petitioner secures 45.5 + 0.5 i.e. 46 marks. Since he does not secure 47% in paper II, there is no scope for calling him for interview."

Invocation Of Arbitration Clause In Tender Document Is Possible Only If Purchase Order Is Placed: Orissa High Court

Case Title: Emcure Pharmaceuticals Ltd v. The Managing Director, Odisha State Medical Corporation & Ors.

Citation: 2022 LiveLaw (Ori) 71

The High Court ruled that till a purchase order is issued by the tenderee pursuant to the acceptance of an offer to supply, no completed 'contract' arises between the parties and thus, the arbitration clause contained in the tender document is not attracted. A Single Judge Bench of Chief Justice Dr. S. Muralidhar reiterated that the arbitration clause contained in the tender document was not an arbitration agreement in praesenti, but a provision that was to come into existence in the future, if a purchase order was placed.

"No Reason For Close Relatives To Falsely Accuse": Orissa High Court Upholds Life Sentence Awarded To Man For Murder Of Cousin Brother

Case Title: Baisakhu Sethy @ Behera v. State of Odisha

Citation: 2022 LiveLaw (Ori) 72

The High Court upheld the conviction of a person, who was sentenced to life for committing murder of his cousin-brother. While dismissing the appeal, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"This is not a case of mistaken identity since all the witnesses are close relations of both the accused and the deceased. The fact that the accused hits the deceased with Bala on the head clearly reveals his intention to cause the death of the deceased. This was not on the spur of the moment. The quarrel happened in the evening whereas the incident happened in the night when the deceased was sleeping and wholly unarmed. There was no need for the close relations of the accused to falsely implicate him in the homicidal death of the deceased."

Orissa High Court Orders Probe Into Death Of Woman & Her Baby Due To Alleged Medical Negligence In 2015

Case Title: Sambara Sabar v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 73

The High Court ordered a probe into the alleged death of a woman and her baby in 2015, who died allegedly due to 'medical negligence'. A petition was filed by the father-in-law of the woman, who not only lost her baby due to an intra-uterine death but herself died while receiving treatment on 25^th March, 2015. The petitioner submitted that the death of the baby as well as the woman was due to medical negligence and was avoidable.

The Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik noted that the pleadings in the petition presented disputed questions of fact with the opposite parties claiming that there was no medical negligence. With a view to obtain an objective assessment of the materials on record, the Court requested the State Commission for Women, Odisha (SCWO) to assist it in the task. It required the SCWO to constitute an appropriate enquiry team to examine the papers and also visit and record statements of the Petitioner and his family members, the concerned treating doctors, the place of treatment, the medical case record and make an assessment as to the veracity of the claims of either party on the basis of the materials gathered. It also ordered that the report of the SCWO pursuant to the above directions be made available to the Court not later than 1st July 2022.

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.

Industrial Disputes Act | "Last Come First Go" Principle Can Be Departed By Employer Only After Recording Reasons In Writing: Orissa High Court

Case Title: State of Odisha, represented by the Asst. District Veterinary Officer (Disease Control), Balasore v. Kailash Chandra Mallick & Ors.

Citation: 2022 LiveLaw (Ori) 75

The High Court held that the principle of "last come first go" cannot ordinarily be departed from by employers while retrenching labourers under the Industrial Disputes Act, 1947 (ID Act). While departing from the principle, it is a pre-condition that the employer has to record 'reasons in writing'. While dismissing writ petition by the employer (State), a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"The fact that the workmen were engaged for more than 240 continuous days and had worked for more than 5 to 7 years on a continuous basis which the Management was unable to dispute factually. In fact, MW 1 supported of the case of the workmen to that extent. The further fact that a person junior to the workmen had been retained while the workmen had been retrenched was also unable to be disputed by the Management."

Orissa High Court Orders Tahasildar To Plant At Least 50 Trees As Penalty For 'Bizarre' Disposal Of Land Encroachment Case

Case Title: Mita Das v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 76

The Court ordered the Tahalisdar, Kakatpur to plant 'at least 50 trees' as a penalty for passing a 'bizarre' order in a land encroachment case. While observing that the Tahasildar did not grant sufficient opportunity to the petitioner before passing order against her, a Single Judge Bench of Justice Biswanath Rath observed, "Looking to the nature of the case and for involvement of eviction of a person from his residence the Tahasildar has a responsibility to find whether the encroacher is an educated and law knowing person or not. Further, the Tahasildar has to see the encroacher if belongs to weaker section or person downtrodden in the society having not even sufficient income to take aid of counsel."

Orissa High Court Denies Bail To MLA Prasant Jagdev Accused Of Driving Car Over A Crowd During Panchayat Elections

Case Title: Prasant Kumar Jagdev v. State of Odisha

Citation: 2022 LiveLaw (Ori) 77

The High Court denied bail to Chillika MLA Prasant Jagdev, who is accused of driving a four-wheeler over a crowd during the last Panchayat elections in Odisha. While dismissing the bail petition, a Single Judge Bench of Justice Satrughana Pujahari observed,

"As it reveals, while giving threat to run the vehicle over the protesters, he drove the vehicle into the crowd that too using the registration number of a different vehicle. Such indulgence and overt act can never be treated as becoming of a public representative. That apart, the series of criminal cases attached to his antecedent speak against his credibility to abide by condition, if any, imposed in case of his bail, more so when he has also not abided by the conditions not to indulge in any criminal activities while allowing him to be released on bail in connection with Balugaon P.S. Case No. 156 of 2021 thereafter, but still involved in two such criminal cases during the Panchayat election including the present one."

Orissa High Court Upholds Life Term Of Man Accused Of Killing Cousin-Brother After State Govt Remitted His Sentence

Case Title: Daku @ Dasarathi Dehury v. State of Odisha

Citation: 2022 LiveLaw (Ori) 78

The High Court confirmed the conviction and the ensuing life term imposed on a man for committing murder of his cousin-brother. While dismissing the appeal filed by the accused against his conviction, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik found no reason to interfere with the reasoned order of the Trial Court. However, it was brought to the notice of the Court that during the pendency of the appeal, the Government of Odisha in exercise of the powers conferred by Section 432 of the Code of Criminal Procedure, 1973 remitted the unexpired portion of the sentence passed against the accused and ordered his premature release. Pursuant thereto, the appellant had already been set free. Hence, the Court held that no further steps are required to be taken against the appellant and accordingly, disposed of the appeal.

Ensure Strict Compliance With RERA On Transfer Of Apartment Common Areas: Orissa High Court Directs Inspector General Of Registration

Case Title: Bimalendu Pradhan v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 79

The High Court directed the Inspector General of Registration (IGR) to ensure strict compliance with the provisions of the Real Estate Regulatory Authority Act (RERA) and Rules made thereunder, until the apparent conflict between certain provisions of the RERA and the Odisha Apartment Ownership (Amendment) Rules, 2021 is reconciled. The Division Bench comprising of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik held, "With the RERA Act mandating that the transfer of common areas should only be effected in favour of an Association of Apartment Owners, sale deeds presented for registration which contain clauses contrary thereto cannot be allowed to be registered by the IGR."

Homicidal Nature Of Death Need Not Always Be Proved Through Direct Evidence: Orissa High Court Upholds Man's Conviction For Wife's Murder

Case Title: Milan @ Makardhwaja Khadia v. State of Odisha

Citation: 2022 LiveLaw (Ori) 80

The High Court held that the homicidal nature of death need not always be proved through direct evidence. A Division Bench of Chief Justice S. Muralidhar and Justice B.P. Routray noted that a homicidal death must be inferred from the circumstances and the nature of injuries noticed on the dead body. The observation was made in an appeal preferred by a man convicted for the murder of his wife and sentenced to life imprisonment. He had argued that in the absence of specific opinion concerning the exact time of death and nature of injuries homicidal nature of the deceased is not proved.

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 On Prison Conditions

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

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 (21^st 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."

"Country's Prestige Involved": Orissa HC Orders Centre To Make All Arrangements For Participation Of Women U-18 Volleyball Team In Asian Championship

Case Title: Lasyamayee Mohanta v. Union of India & Ors.

Citation: 2022 LiveLaw (Ori) 84

The High Court directed the Union of India to make all arrangements, including financial and travelling provisions, for the Indian Under-18 Women's Volleyball Team to participate in the 14^th Asian Women's Volleyball Championship, which is scheduled to be held in June at Nakhon Pathom city of Thailand. While expressing serious dismay at the inaction of the Union of India in this respect, a Single Judge Bench of Justice Biswanath Rath observed,

"It is at this stage, this Court also considers the prestige of the Country involved herein. A Country having 175 crores of people even and at its position, if it fails in sending the contingency already selected to participate in the prestigious event like the 14th Asian Women's U-18 Volleyball Championship, will not send a good signal. This Court finds, the Union of India is even not coming to assist the Court for involving a contest at their level. This Court records the bizarre affair in the cooperation of O.Ps. 1 & 2 in such serious matter in spite of two adjournments already granted."

"May Seem Plausible On Grounds Of Natural Justice, May Not Be Possible Legally": Orissa HC Rejects Challenge To Evaluation In Teachers Recruitment Exam

Case Title: Rabindra Panigrahi v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 85

The Court rejected the plea of a candidate who challenged the evaluation process of the examination conducted for appointment of contractual Hindi teachers in government secondary schools. While dismissing the writ petition, the Single Bench of Justice Sanjeeb Kumar Panigrahi observed,

"The court needs to see what is legally possible and not what possibly dehors the legal process. A thing that may seem plausible on the grounds of natural justice, may not be possible legally. As succinctly put by Mathew, J. in his judgment in the Union of India v. M.L. Kapur, "it is not expedient to extend the horizon of natural justice involved in the Audi alteram partem rule to the twilight zone of mere expectations, however great they might be."

Unlawful Possession Can't Be Defended On The Ground That Eviction Clause In Statute Is Prospective In Nature: Orissa High Court

Case Title: Sashibhusan Das v. Lord Lingaraj Mahaprabhu & Anr.

Citation: 2022 LiveLaw (Ori) 86

The Orissa High Court clarified that an unlawful possession of a property, which does not bestow any right, cannot be defended only on the ground that the legislation, which authorises eviction, is prospective in nature. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik held,

"A lawful right is always protected and cannot be taken away by an amendment brought into force at a later point of time. However, it does not mean that an unlawful possession which does not convey any right can still be defended on the ground that the Act to be prospective in nature. Unless, a possession is shown to be lawful, it has to be treated as unlawful as on the date when the amended Act came into force. Furthermore, it has to be treated as continuous wrong so long as the possession is unauthorized."

ITC Transfer From One State To Another Is Not An Inward Supply: Orissa High Court

Case Title: M/s. JSW Steel Ltd. Versus Union of India

Citation: 2022 LiveLaw (Ori) 87

The Orissa High Court bench of Justice Jaswant Singh and Justice M.S. Raman ruled that an input service distributor (ISD) can claim ITC only in the case of an inward supply, and an ITC transfer from one state to another is not an inward supply. "Since no such supply being shown to have been made by JSW Steel Ltd. of Odisha to JSW Steel Ltd. of Maharashtra, no prima facie case is made out by the Petitioner. The transactions in question prima facie amount case are made out by the Petitioner. Thus, transactions in question prima facie amount to syphoning of tax amounts, therefore, apparently warrant invocation of proceeding under Section 74 of the OGST/CGST Act", the court observed.

Employees Should Not Be Permitted To Change Date Of Birth At The Fag End Of Their Service Career: Orissa High Court

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

Citation: 2022 LiveLaw (Ori) 88

The Orissa High Court held that applications of employees to change their date of birth should not be entertained when they apply for the same at the fag end of their service career. A Single Judge Bench of Justice Sanjeeb Kumar Panigrahi observed, "Apart from the notification and the said guidelines, the Hon'ble Supreme Court in a series of cases have categorically laid down that the employees should not be permitted to change the date of birth at the fag end of their service career. In the instant case the application of alteration has been filed at the fag end of the Petitioner's service career."

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."

Govt. Employee Has No Legal/Statutory Right To Insist For Being Posted At A Particular Place: Orissa High Court

Case Title: Dulamani Patel v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 91

The Orissa High Court denied the prayer made by a government employee who insisted to get promoted to a post situated at a particular place. It held that no government employee has a legal or statutory right to claim a post of one particular place and thereby avoiding transfers. While, dismissing the writ petition, a Single Judge Bench of Justice Sanjeeb Kumar Panigrahi observed,

"The Petitioner's prayer insofar as promoting and repositioning him in the school where he was continuing or at a nearby place, is unsustainable as the Petitioner was holding a transferable post and under the conditions of service applicable to him, he was liable to be transferred and posted at any place within the State of Odisha. The Petitioner had no legal or statutory right to insist for being posted at one particular place."

Orissa High Court Restrains MP Anubhav Mohanty, Wife Varsha Priyadarshini From Commenting Against Each Other During Pendency Of Divorce Case

Case Title: Varsha Priyadarshini v. Government of India & Ors.

Citation: 2022 LiveLaw (Ori) 92

A Vacation Division Bench of the High Court comprising of Justice Bibhu Prasad Routray and Justice Mruganka Sekhar Sahoo recently ordered Member of Parliament (MP) from Kendrapara and Odia actor Anubhav Mohanty to refrain from making any video/comment against his wife and actor Varsha Priyadarshini in any media, including social media during the pendency of their divorce proceedings. A similar direction has been passed against his wife. Varsha Priyadarshini had recently approached the High Court against her husband, alleging that he is maligning her image by making a series of videos and releasing them on YouTube.

Election Cannot Be Said To Have Commenced If Notified By A Body Not Empowered To Do So: Orissa High Court

Case Title: Dr. Pabitra Mohan Mallik v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 93

The Court quashed a notification issued by an appealing body of the Odisha Medical Services Association ('OMSA'), which notified election for the Association. A Single Bench of Justice Arindam Sinha, while concluding that the notification was issued without any authority as it was done in violation of the body's constitution, observed, "This Bench is in respectful agreement with views expressed in Dillip Kumar Nayak (supra) on authority to conduct elections, as must be on basis of law so far as the association is concerned. Basis of law is its constitution. There is clear indication that the provisions therein were not complied with and followed in issuance of impugned notification."

After going through the facts and laws, the Court noted that the process of election was commenced by a committee not duly constituted under the association's constitution. In the circumstances, the Court held, it cannot be said that the process of election had commenced.

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 recently 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."

Also Read: Appointment Of Guest Lecturers On Large Scale Without Regular Appointments Likely To Make 'Huge Dent' On Quality Of Education: Orissa High Court

"Improper To Keep Such Cases Pending For Years": Orissa High Court Orders Compassionate Appointment For Two After 7 Yrs Delay

Case Title: Pradip Kumar Sahoo v. Principal Secretary to Govt., School and Mass Education Deptt. & Ors.

Citation: 2022 LiveLaw (Ori) 95

The Orissa High Court held that it is highly improper to keep the cases of compassionate appointment pending for years, as the very purpose behind the same is to mitigate hardship of a bereaved family. While making orders for compassionate appointment in favour of two persons after seven years delay, a Single Judge Bench of Justice Sanjeeb Kumar Panigrahi observed, "It is stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress."

Orissa High Court Denies Bail To Accused Under PMLA Citing Flight Risk; Orders Conclusion Of Trial Within Six Months

Case Title: Mohammad Arif v. Enforcement Directorate

Citation: 2022 LiveLaw (Ori) 96

The Orissa High Court denied bail to an accused under the Prevention of Money Laundering Act (PMLA) citing 'flight risk'. However, it ordered the Trial Court to expedite and conclude the trial preferably within a period of six months. While dismissing the bail application, a Single Judge of Justice Sanjeeb Kumar Panigrahi observed, "Since the petitioner is a resident of Delhi and there is likelihood of flight risk and misuse of the liberty of bail and the trial is likely to suffer, the present case does not inspire the confidence of this Court to use the judicial discretion to grant bail in favour of the petitioner."

Candidates Holding 'Dual Degrees' Can't Be Arbitrarily Rejected While Making Appointments To Public Office: Orissa High Court

Case Title: Bhuban Mohan Behera v. State of Odisha & Anr.

Citation: 2022 LiveLaw (Ori) 97

The Orissa High Court held that candidature of a candidate seeking appointment to a public office cannot be outrightly and arbitrarily rejected only on the basis that he holds 'dual degrees'. While providing relief to a candidate, whose application was rejected for such reason, a Single Judge Bench of Justice Sanjeeb Kumar Panigrahi opined,

"Indisputably, in the case at hand, this Court is of the opinion that in the matters of appointment, the rules provided by the appointing committee have to be strictly followed. In the present case, OPSC has not provided any instructions for candidates holding dual degrees. Even though this can be considered as a distinctive case, however it is arbitrary to out-rightly reject the candidature of the petitioner."

Orissa High Court Denies Bail To Man Accused Of Raping Woman On False Assurance Of Marriage

Case Title: Rajendra Mohanta v. State of Odisha & Anr.

Citation: 2022 LiveLaw (Ori) 98

The Orissa High Court denied bail to a man, who was accused of having sexual intercourse against the will of a woman on the false assurance of marriage. While rejecting the bail, a Single Judge Bench of Justice Sanjeeb Kumar Panigrahi quoted the following observation made by the Supreme Court in State of Madhya Pradesh v. Madanlal,

"Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error."

Orissa High Court Upholds Denial Of Default Bail To Man Accused Of Uploading 'Obscene Photos' Of Women On Facebook Accounts

Case Title: Satyananda Sahoo v. State of Odisha & Anr.

Citation: 2022 LiveLaw (Ori) 99

A Single Judge Bench of the Orissa High Court, comprising of Justice Sanjeeb Kumar Panigrahi, upheld the order of a Special Court denying default bail under Section 167(2), Cr.P.C. to a person who was accused of uploading 'obscene photographs' of women by creating fake Facebook accounts in their names. It also denied regular bail to the accused by observing, "So far as the prayer of the appellant for release on bail is concerned, taking into account the nature and gravity of the accusation, character of evidence appearing against the appellant, the stringent punishment provided and that there are no reasonable grounds for believing that the appellant is not guilty of the offences alleged or not likely to commit any such offences, which is not possible to record in this case, the prayer for bail is devoid of merit."

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."

Orissa High Court Dismisses PIL Seeking Cancellation Of India-South Africa T20 At Barabati Stadium

Case Title: Sanjay Kumar Naik v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 101

The Orissa High Court dismissed the Public Interest Litigation (PIL) filed by one Sanjay Kumar Naik, seeking cancellation of T-20 International match between India and South Africa at Barabati Stadium, Cuttack. The match was scheduled to be held on 12^th June 2022. A vacation Bench comprising Justice Sangam Kumar Sahoo and Justice Murahari Sri Raman dismissed the petition after the State provided assurance of safety and security at the stadium premises. The Bench observed,

"The learned Advocate General emphatically contended that the Odisha Cricket Association (OCA) has already made elaborate and comprehensive arrangements for smooth and successful conduct of the event in collaboration with the State Government, Police department and other stake holders and several measures have been taken towards fire safety with the help of Fire Services Department and safety of spectators is the utmost concern of the State Government and there will be no difficulty for the spectators in any manner during the match and since it is an international event, no order should be passed which will have a far-reaching consequence in organizing such event in Barabati Stadium in future."

Commissioner Can't Allow Deposit Of Interest Payment In Instalments: Orissa High Court

Case Title: M/s. P.K. Ores Pvt. Ltd. @ M/S. PK Minings Pvt. Ltd. Versus Commissioner of Sales Tax

Citation: 2022 LiveLaw (Ori) 102

A Division Bench of Justices Jaswant Singh and Murahari Sri Raman held that the Commissioner of CT & GST is not empowered to allow the deposit of interest payments in instalments. The Court held that since interest is a part of tax and such tax being belated payment in respect of self-assessment, Section 80 of the OGST Act clearly excludes grant of instalment.

"The taxable person shall also be liable to pay prescribed interest on the amount due from the first day such tax was due to be payable till the date tax is paid. In view of the proviso to Section 80, if default occurs in payment of any one instalment, the taxable person would be required to pay the whole outstanding balance payable on such date of default itself without further notice. There was, therefore, no scope for the Commissioner of CT & GST to entertain an application for grant of instalment"

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 recent 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."

Arbitral Award Cannot Be Set Aside On The Ground That It Is Based On Insufficient Material: Orissa High Court

Case Title: GMR Kamalanga Energy Ltd. versus SEPCO Electric Power Construction Corporation

Citation: 2022 LiveLaw (Ori) 106

The Orissa High Court reiterated that an arbitral award cannot be set aside on the ground of breach of fundamental principles of justice, if the findings of the Arbitral Tribunal do not shock the conscience of the Court. A Single Bench of Justice K.R. Mohapatra held that even if the material available before the Arbitral Tribunal is not sufficient to come to the conclusion arrived at by the Tribunal, the award cannot be set aside on this ground alone.

Orissa High Court Orders Compensation To Woman Who Got Pregnant Even After Undergoing Sterilization

Case Title: Shriya Chhanchan v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 107

The Orissa High Court ordered compensation to a woman who got pregnant even after undergoing sterilization process conducted by the State. While criticising the State for not following the proper procedures, a Single Bench of Justice Arindam Sinha observed,

"State not having itself followed the procedure to the letter cannot turn around and say that petitioner had omitted to act as per undertaking given by her, to report that she missed menstrual cycle after the operation. As aforesaid analysis of pleadings in paragraphs 4 and 6, respectively of the petition and counter, do not support this contention of State."

Non-Submission Of Certified Copy of GST Order Appealed Against Within 7 Days Is A Mere Technical Defect: Orissa High Court

Case Title: M/s Atlas PVC Pipes Limited Versus State of Orissa

Citation: 2022 LiveLaw (Ori) 108

The Orissa High Court held that the non-submission of a certified copy of the GST order appealed against within 7 days is a mere technical defect. The Division Bench of Justice Krushna Ram Mohapatra and Justice Murahari Shri Raman observed that on the altar of default in compliance of a procedural requirement, the merit of the matter on appeal cannot be sacrificed.

"Since the petitioner has enclosed the copy of the impugned order as made available to it in the GST portal while filing the Memo of Appeal, the non-submission of the certified copy, as has rightly been conceded by the Additional Standing Counsel appearing on behalf of CT and GST Organisation, is to be treated as a mere technical defect," the court noted.

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."

NDPS Act | Possession Not Proved Merely By Sitting In Vehicle From Which Contraband Is Seized: Orissa High Court

Case Title: Kishore Bira v. State of Odisha

Citation: 2022 LiveLaw (Ori) 112

The High Court held that a person merely sitting in a vehicle from which contrabands were seized does not necessarily point to the fact that the said person had possession of those contrabands. While granting bail to the petitioner, who was booked under the NDPS Act and detained for being found from a vehicle which carried ganja, a Single Judge Bench of Dr. Justice Sanjeeb Kumar Panigrahi placed heavy reliance on the observations made in Avtar Singh & Ors. v. State of Punjab, wherein the Apex Court had reached a similar conclusion.

"Tobacco & Tobacco Products" In Schedule To Odisha Entry Tax Act Include 'Bidi': Orissa High Court

Case Title: M/s. Patel Brothers & Co., Sambalpur v. State of Odisha

Citation: 2022 LiveLaw (Ori) 113

The Orissa High Court held that 'bidi' comes under the purview of "tobacco and tobacco products" as provided under Entry 16, Part I of the Schedule to the Odisha Entry Tax Act, 1999 ('OET Act'). A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"Although learned counsel for the Petitioner sought to contend that under Entry 31 'cigarette and lighter' is a separate item and therefore unless there is a separate entry for 'bidi' it would not be amenable to entry tax in terms of the OET Act, the Court is unable to agree with the above contention. The expression 'tobacco and tobacco products' is wide enough to include 'bidi'..."

Orissa High Court Releases Convict Under Probation Of Offenders Act In '30 Yrs Old' Attempt To Murder Case

Case Title: Chinta Marandi @ Chintamani Marandi v. State of Orissa

Citation: 2022 LiveLaw (Ori) 114

The Orissa High Court released a person under the Probation of Offenders Act, 1958 ('the P.O. Act') while upholding his conviction for attempt to murder under Section 307, IPC in a '30 years old' case. A Single Judge Bench of Justice Sashikanta Mishra observed,

"…it is seen that the occurrence undoubtedly took place more than 30 years back. The Petitioner was a young man at that point of time, but is now aged nearly 60 years. No criminal antecedents are reported against him. Therefore, in the considered view of this Court, ends of justice would be best served if the Petitioner is released as per the provision of Section 4 of the P.O. Act instead of serving the remaining part of the sentence in jail."

Orissa High Court Comes Down Heavily On Two Magistrate Courts For Their Inaction Resulting In '9 Yrs Delay' In Remand

Case Title: Pradeep Kumar Sethy v. State of Odisha

Citation: 2022 LiveLaw (Ori) 115

The High Court came down heavily on two Courts of Sub-Divisional Judicial Magistrates ('SDJM') for their apparent inaction/negligence, which resulted in about 'nine years' delay in grant of custody of accused to the investigating agency. Notably, the accused Pradeep Sethy (CMD of 'Artha Tatwa') stayed in custody for all these years in connection with another case and his application for grant of bail was outrightly rejected as he was never in custody in connection with the instant case. While granting bail, a Single Judge Bench of Justice Sashikanta Mishra observed,

"The lackadaisical manner in which the matter has been dealt with is a case for serious concern as it strikes at certain fundamental pillars of not only criminal procedure but also the Constitutional principles of liberty. This is a classic case where the petitioner, for no fault of his own, was deprived of making a legitimate prayer for being released on bail. Viewed differently, this is a case where the continued inaction of the concerned authority/Courts resulted in serious violation of fundamental right of the petitioner to seek his liberty. Whether bail is to be granted on merits or not is a different question, but to prevent a person from moving for bail and that too, purely on technical grounds is something that cannot meet with the sanction of law."

Look Out Circular | Directors Of Company Can't Be Denied 'Right To Travel Abroad' In Absence Of Any Non-Compoundable Offence: Orissa High Court

Case Title: Rajesh Kumar Agarwal & Ors. v. Regional Director (E), Ministry of Corporate Affairs, Kolkata & Ors.

Citation: 2022 LiveLaw (Ori) 116

The Orissa High Court held that Directors/office bearers of a company cannot be deprived of their fundamental right to visit abroad by issuing Look Out Circular (LOC) when there exists no prima facie non-compoundable offence against them. Further, mere bald allegations, without any rigid substance to substantiate the same, cannot be made basis for issuing LOC. While quashing the LOC issued against the petitioners herein, a Single Judge Bench of Justice Biswanath Rath noted,

"There is no complaining of non-cooperation against any of the Petitioners. Further as of now there is no existence of the Petitioners' involvement in any non-compoundable offence. In the circumstance, this Court finds, continuance of LOC may be dangerous, as it had already affected the Fundamental Rights of the Petitioners to travel abroad for promotion of their business. The entire inspection is already over and any of the Petitioners movement to abroad can very well be controlled by setting out terms and conditions involving each of the Petitioners."

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."

Courts Should Be "Extremely Reluctant" To Impose Their Own Views In Academic Appointments: Orissa High Court Reiterates

Case Title: Dr. Satya Narayan Bhujabala & Anr. v. Veer Surendra Sai Institute of Medical Science and Research, Burla and Ors.

Citation: 2022 LiveLaw (Ori) 118

The Orissa High Court reiterated that Courts should be extremely reluctant in imposing their own views disregarding the statutes or rules governing appointment in the field of academics. The Court declined to interfere in a petition, which sough intervention against denial of candidature for the want of 'chance certificate'. A Single Judge Bench of Dr. Justice Sanjeeb Kumar Panigrahi relied on the following observation from Maharashtra State Board of Secondary and Higher Secondary Education & Anr. v. Paritosh Bhupesh Kumar Sheth & Ors.,

"…the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass-root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded."

Tax Exemptions Given With Benevolent Object, Approach For 'Exempting' & 'Including' Subject Matters Under Tax Purview Can't Be Same: Orissa HC

Case Title: State of Odisha represented by Commissioner of Sales Tax, Cuttack v. M/s. Geetashree Industries & Ors.

Citation: 2022 LiveLaw (Ori) 119

The Orissa High Court held that the approach which is employed to exempt a commodity from the purview of taxation is not the same which is used to bring a good under the umbrella of taxation. While applying this principle, a Division Bench of Chief Justice Dr. S. Muralidhar and Dr. Justice Sanjeeb Kumar Panigrahi held that 'Chuni' is different from 'Cattle feed' under entry 66 of para-I of the Schedule attached to the Odisha Entry Tax Act, 1999 ('OET Act') and thus, the former is not amenable to entry tax under the statute.

"It is one thing to say that a certain product was exempted for the purposes of taxation by virtue of interpretation of an exemption notification, it is another to say that it is amenable to tax by bringing it within the ambit of another product shown in the Schedule to the OET Act and, therefore, bringing it within the fold of taxation. The approach to both cannot be the same."

Orissa High Court Denies To Discharge Persons Accused Of Making Violent Ruckus At Residence Of CM's Private Secretary

Case Title: Abhisek Acharya & Ors. v. State of Odisha

Citation: 2022 LiveLaw (Ori) 120

The Orissa High Court denied to discharge a number of persons accused of forcefully entering and causing damage to properties at the official residence of Mr. V.K. Pandian, IAS & Private Secretary to the Chief Minister of Odisha Mr. Naveen Pattnaik. While upholding the order of the Trial Court, a Single Judge Bench of Justice Sangam Kumar Sahoo observed,

"After going through the case records minutely particularly the statements of the witnesses, the seizures in the case, it cannot be said that there is absence of prima facie material against the petitioners. The learned trial Court has also found that there are materials available in the case record that on 10.02.2018 at about 10.00 a.m., the petitioners entered into the official residential quarters of Mr. V.K. Pandian raising hulla and assaulted the security guard, abused the informant in filthy language, damaged the flower pots so also glass pans of the quarters and the motorcycle and seizure of those damaged articles were made."

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 Orissa 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

Section 5 Limitation Act Application Not Required If Application Under Section 34 Of A&C Act Is Within Statutory Period: Orissa High Court

Case Title: Faridabad Gurgaon Minerals v. Orissa Mining Corporation Ltd.

Citation: 2022 LiveLaw (Ori) 122

The Orissa High Court ruled that there is no requirement under Section 34(3) of the Arbitration and Conciliation Act, 1996 (A&C Act) to file a separate application for condonation of delay in filing an application to set aside an arbitral award under Section 34 of the A&C Act, since the prescribed and the extended periods are both provided under Section 34 of the A&C Act.

A Single Bench of Justice Arindam Sinha held that the Supreme Court in the case of State of Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti (2018) has declared the law and has interpreted the provisions of Section 34(5) of the A&C Act, which requires a party to issue a prior notice to the opposite party before filing an application to set aside an arbitral award, as being 'directory' in nature and not mandatory. Therefore, the High Court ruled that the law thus stated by the Supreme Court applies retrospectively since it is a declaration on the discovery of the correct principle.

Orissa High Court Upholds 'Life Term' Of Murder Convict 18 Yrs After Enlarging Him On Bail

Case Title: Tapan Kumar Pradhan v. State of Odisha

Citation: 2022 LiveLaw (Ori) 123

The Orissa High Court upheld the conviction and resultant life imprisonment awarded to a person in a 2001 murder case. Notably, after the conviction by the Trial Court in 2003, he was enlarged on bail in 2004 by the High Court. While dismissing the appeal, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"The Court is satisfied that the prosecution in the present case has been able to establish convincingly each of the links in the chain of circumstances and further prove that the circumstances are so complete and incapable of an explanation of any other hypothesis than that of the guilt of the Appellant. The evidence is not only consistent with his guilt but is also inconsistent with his innocence."

12% Sales Tax Applicable On Robinson Barley And Purity Barley: Orissa High Court

Case Title: Reckitt Benckiser (India) Ltd. versus State of Odisha and Others

Citation: 2022 LiveLaw (Ori) 124

The Orissa High Court held that 12% sales tax is applicable on Robinson Barley and Purity Barley. The distinct commercial product "Robinson Barley" cannot be classified as "cereal". The Division Bench of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik further held that Robinson Barley and Purity Barley manufactured by the petitioner should be taxed under the residual Entry 189 of List C of the Rate Chart appended to the OST Act and not Entry 25 relating to "cereals".

PIL Can't Be Entertained In Disputes Relating To Service Matters: Orissa High Court

Case Title: Hansmina Kumari Das & Ors. v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 125

The Orissa High Court held that Public Interest Litigation (PIL) cannot be entertained in disputes pertaining to 'service matters'. While adjudicating a matter relating to alleged irregularities in the appointment of primary school teachers, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik followed the above principle as has been laid down and reiterated by the Supreme Court in a number of cases.

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…"

Orissa High Court Orders ₹10 Lakh Compensation For Death Of 7-Year-Old Girl In School Kitchen Wall Collapse

Case Title: Madhav Soren v. State of Odisha and Others

Citation: 2022 LiveLaw (Ori) 127

The Orissa High Court ordered to pay a compensation of Rs. 10 Lakhs to the father of a 7-year-old daughter who died after a kitchen side wall within the school premises collapsed. The Single Bench of Chief Justice S. Muralidhar observed that the death of the girl was totally unnecessary and avoidable and it would not have occurred if all the safety measures, that were instructed to be put in place by the State, had been strictly followed.

"...the negligence of the State authorities in using defective materials to construct a kitchen in the school premises has already been established during the enquiry. The death of the young child was totally unnecessary and avoidable. The responsibility for death definitely rests with the State. The death would not have occurred if all the safety measures, that were instructed to be put in place by the State, had been strictly followed", the Court noted.

Mere Reply To The Notice Of Arbitration Would Not Save The Limitation Period For Filing Counter-Claims: Orissa High Court

Case Title: Birla Institute of Management v. Fiberfill Interiors & Constructions

Citation: 2022 LiveLaw (Ori) 128

The Orissa High Court held that a mere reply to the notice of arbitration would not save the period of limitation for filing the counter-claim(s). A Single Judge Bench of Justice Arindam Sinha also held that the date on which the counterclaim is filed before the arbitrator would be the relevant date for determining the date of stopping of the period of limitation unless the respondent had issued a separate notice of arbitration raising the counter-claims, then the limitation would be computed as on the date of that notice.

Might Lead To Law & Order Situation": Orissa HC Declines To Intervene Against Police Action In 'Distorted Ganesh Idol' Case

Case Title: Narayan Muduli v. State of Odisha & Ors.

Citation :2022 LiveLaw (Ori) 129

The Orissa High Court declined to entertain a Public Interest Litigation (PIL) filed by a sculptor against alleged police actions in preventing him from making and selling certain types of idols of Lord Ganesha. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Chittaranjan Dash, while backing police actions, apprehended a law-and-order situation if such idols are permitted to be made and sold. It observed,

"In matters of this nature where there is a genuine apprehension of untoward incidents being created which might lead to a law-and-order situation, the Court would not like to sit in judgment over the assessment of the Police."

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."

Orissa HC Directs Police To Escort Lawyer Who Was Allegedly Obstructed By Bar Members From Submitting Bail Bond Of Accused

Case Title: Pramod Jena & Anr. v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 131

The Orissa High Court directed the Superintendent of Police, Khurda to provide necessary security/escort to a lawyer who was allegedly obstructed by Bar members of Tangi from approaching the Magistrate for submitting the bail bonds of his clients. While expressing concern over the matter, a Division Bench of Justice S. Talapatra and Justice M.S. Sahoo observed,

"No right-thinking person can but express serious concern as regards such situation, whatever the reason, there may be behind such action. Liberty is most precious under our constitutional frame work and under the Rule of law, no person whatever mighty he may be, cannot be allowed to meddle with the liberty of individual. We hope good sense prevail."

O. 6 R. 17 CPC | Amendment To Election Petition Can't Be Permitted To Cure 'Inherent Defect' After Expiry Of Limitation Period: Orissa High Court

Case Title: Ashok Kumar Gedi v. Jyotrimayee Behera & Ors.

Citation: 2022 LiveLaw (Ori) 132

The High Court held that an amendment application under Order 6, Rule 17 of the Code of Civil Procedure, 1908 cannot be allowed to cure some inherent defects in an election petition, changing its character and nature, after the expiry of the prescribed limitation period. A Single Bench of Justice Biswanath Rath observed,

"For the opinion of this Court, the mistake appears to be inherent mistake by allowing change in the village names after election dispute period is over which will be amounting to extending filing of election dispute beyond the time stipulation prescribed in the Grama Panchayat Election Rules. Finding the election dispute involved inherent mistake and amendment being brought after 15 days restriction from filing the election dispute of this nature is impermissible in the eye of law."

Orissa High Court Upholds Life Sentences Of Murder Convicts Basing Upon Testimony Of 'Child Witness'

Case Title: Ashis Kerketta & Anr. v. State of Odisha

Citation: 2022 LiveLaw (Ori) 133

The High Court affirmed the life imprisonment awarded to two murder convicts while placing reliance upon the testimony of a 'child witness'. To clarify the position of law regarding admissibility and reliability of testimony given by child witness, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Chittaranjan Dash relied on Alagupandi @ Alagupandian v. State of Tamil Nadu (2012), wherein it was observed,

"There is no Rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a Rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable."

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."

Orissa High Court Upholds Conviction Of Dara Singh & Other Accused In 1999 Father Arul Doss Murder Case

Case Title: Dara Singh @ Rabindra Ku. Pal & Ors. v. State of Odisha

Citation: 2022 LiveLaw (Ori) 135

The Orissa High Court upheld the conviction of Dara Singh alias Rabindra Kumar Pal and his co-accused for the murder of Father Arul Doss in Mayurbhanj district of Odisha in the year 1999. While affirming the conviction and sentence pronounced by the Trial Court in September 2007, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Chittaranjan Dash held,

"The charge as framed clearly indicates the manner of commission of the crime. As explained in Hamlet@ Sasi (supra) the common intention of four persons who came armed with lathis and committed the crime of killing father Arul Doss and burning the church has been clearly established. The two ingredients to attract the finding of the guilt for the substantive offences with which they have been charged, with the aid of Section 34 IPC, stands fully established."

S.37 Odisha Prevention Of Land Fragmentation Act | Tahasildar Can't Modify Record Of Rights Against Direction Of Revisional Authority: High Court

Case Title: Anugraha Narayan Pattnaik v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 136

The Orissa High Court held that a Tahasildar cannot modify or improve upon the Records of Rights ('ROR') going against the directions of the revisional authority under Section 37 of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 ('O.C.H. & P.F.L. Act'). While setting aside such a deviation, a Single Judge Bench of Justice Biswanath Rath observed,

"…the Tahasildar in his limited jurisdiction took a decision differing from the direction of the competent authority U/s.37(1) of the O.C.H. & P.F.L. Act, which is not permissible in the eye of law. For the opinion of this Court so long as the order of the competent authority U/s.37(1) of the O.C.H. & P.F.L. Act, 1972 remains intact, the Tahasildar being the subordinate authority is bound by the same."

Orissa High Court Upholds Conviction Of Accused Basing Upon Testimony Of 'Injured Witness' In 22 Yrs Old Murder Case

Case Title: Harekrushna Naik & Ors. v. State of Orissa

Citation: 2022 LiveLaw (Ori) 137

The Orissa High Court upheld the conviction of three persons charged with murder and the ensuing life sentence awarded to them in a '22-year-old' case. While affirming the said conviction, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Chittaranjan Dash considerably relied on the testimony of an 'injured witness' and held,

"Having carefully examined the evidence of P.W. 14, this Court is satisfied that his evidence is clear and consistent and lends assurance as to its truthfulness and reliability. It stands corroborated by the medical evidence as well as the evidence of P.W.7."

The Court also referred to the observations made in Ramvilas v. State of Madhya Pradesh, wherein it was pointed out that "evidence of the injured witnesses is entitled to a great weight and very cogent and convincing grounds are required to discard the evidence of the injured witnesses."

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."

Art. 227 | Not Proper To Re-appreciate Evidence & Substitute Own Findings Only Because Second View Possible: Orissa High Court Reiterates

Case Title: Abhiram Chatria v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 139

The High Court reiterated that it is not proper for the High Court to re-appreciate evidence while exercising jurisdiction under Article 227 of the Constitution and thereby to substitute its own views in the place of views expressed by the Courts below only on the ground that a second or alternative view is possible. While dismissing the petition which called for reappreciation of evidence, a Single Judge Bench of Justice Krushna Ram Mohapatra observed, "This Court is in seisin of the matter under Article 227 of the Constitution. Hence, it will not be proper to re-appreciate the evidence and substitute its own finding only because a second view may be possible."

Orissa High Court Upholds Life Sentence Of Man Convicted For Murder Of '8 Yrs Old Child' Basing Upon His Dying Declaration

Case Title: Tukuna @ Tankadhar Swain v. State of Odisha

Citation: 2022 LiveLaw (Ori) 140

The Orissa High Court upheld the life imprisonment of a man convicted for murder of an eight (8) years old boy, basing upon the dying declaration of the deceased. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Chittaranjan Dash placed reliance on State of Uttar Pradesh v. Veerpal, wherein the Apex Court observed,

"Now, on the aspect, whether in the absence of any corroborative evidence, there can be a conviction relying upon the dying declaration only is concerned, the decision of this Court in the case of Munnu Raja & Anr. (supra) and the subsequent decision in the case of Paniben (Smt) V. State of Gujarat, (1992) 2 SCC 474 are required to be referred to. In the aforesaid decisions, it is specifically observed and held that there is neither a rule of law nor of prudence to the effect that a dying declaration cannot be acted upon without a corroboration. It is observed and held that if the Court is satisfied that the dying declaration is true and voluntary it can base its conviction on it, without corroboration."

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."

MGNREG Act | Collector Can Transfer Gram Rozgar Sevaks For 'Administrative Exigencies': Orissa High Court

Case Title: Gagan Bihari Patra & Ors. v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 142

The Court held that a Collector can transfer Gram Rozgar Sevakas ('GRS'), who are engaged under Section 18 of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 ('MGNREG Act') read with the MGNREG's Operational Guidelines, 2013, for 'administrative exigencies'. While dismissing challenges to such transfers, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Chittaranjan Dash held,

"In view of the above statutory framework and set up Operational Guidelines and instructions, the Court is satisfied that the Collector was authorised to issue orders of transfer of GRSs and it was not in violation of any of the provisions of the OGP Act (Orissa Gram Panchayat Act). There is a basic misconception in construing the engagement of the GRSs as being covered by the OGP Act whereas it is covered under Section 18 of the MGNREG Act read with the Operational Guidelines issued thereunder."

Writ Not Maintainable Against Admission Of Petition Under Section 34 Of A&C Act Without Pre-Deposit: Orissa High Court

Case Title: M/s. Chemflo Industries Pvt. Ltd. versus M/s. KMC Construction Ltd. and Anr.

Citation: 2022 LiveLaw (Ori) 143

The High Court ruled that the Court cannot entertain a writ petition against an order passed by the lower court admitting the application under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act) to set aside the arbitral award, despite the fact that the award debtor had failed to deposit 75% of the awarded amount, as mandated by Section 19 of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act). The Single Bench of Justice Arindam Sinha held that rejection of the demurrer application, filed by the petitioner for violation of the provisions of Section 19 of the MSMED Act, can be taken as a ground of appeal under Section 37 of the A&C Act against the order passed in a Section 34 application. Hence, the Court ruled that it cannot be considered by the Court as a rarest of the rare case so as to exercise judicial review.

Writ Jurisdiction Can't Be Exercised To Mandate Preparation Of 'Wait List' In Recruitment Exams: Orissa High Court

Case Title: Dr. Srikant Panda v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 144

The Orissa High Court held that it cannot issue a writ of mandamus to mandate authorities to publish a 'wait list' in an examination held for recruitment. While rejecting such prayer, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Chittaranjan Dash observed,

"It is not possible for the Court, if there is no requirement in the advertisement and as per the governing Rules for preparing any 'wait list', for a mandamus to be issued to the Opposite Parties to offer any vacant post to the Petitioner irrespective of the fact that he does not figure in the merit list. Whether or not to have a waiting list for any particular selection is a policy decision to be made by the recruiting entity and it is not for the Court to dictate that for every selection there must be a wait list."

LoA Not Issued, But Bid Documents Establish Contractual Relationship - Arbitration Clause Can Be Invoked: Orissa High Court

Case Title: M/s. Jhar Mining Infra Private Limited versus CMD, managing Coalfields Ltd. & Ors.

Citation: 2022 LiveLaw (Ori) 145

The Orissa High Court ruled that where a tenderer/bidder is declared as a 'Preferred Bidder', the arbitration clause incorporated in the tender document can be invoked by the bidder, even if no tender is awarded to it and no formal contract is concluded between the parties. The Court held that the arbitration clause contained in the tender document, which provided for referring the disputes which arose prior to the execution of the contract to arbitration, is an arbitration agreement in terms of Section 7 of the Arbitration and Conciliation Act, 1996. A Single Bench of Chief Justice Dr. S. Muralidhar reiterated that at the stage of referring the parties to arbitration, the Court is only required to exercise the power of prima facie judicial review regarding the existence of an arbitration agreement.

'State's Objection Shocking To Judicial Conscience': Orissa High Court Directs Govt To Pay Compensation To 2008 Kandhamal Riot Victim's Kin

Case Title: Benadikta Digal v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 146

The High Court expressed 'shock' over Odisha government's rejection of a claim for grant of compensation to the brother of a man, who died in October 2008 on account of the grievous injuries he had suffered during the Kandhamal communal riots. Ordering the State to pay the petitioner an aggregate compensation, as was paid to the other riot victims, Justice Arindam Sinha said:

"Court is convinced there were mitigating factors and continuity of cause of action of petitioner. Rejection of claim for compensation in the face of ultimately the Supreme Court having directed payment of additional compensation in respect of victims of the communal violence by Archbishop Raphael Cheenath S.V.D. v. State of Orissa, reported in AIR 2016 SC 3639, is position taken by State that shocks the judicial conscience."

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."

Orissa HC Grants ₹10 Lakhs Compensation To Father Who Lost Son To Injuries Sustained While Playing Cricket In School

Case Title: Jaladhar Jena v. Union of India & Ors.

Citation: 2022 LiveLaw (Ori) 148

The High Court ordered Rs. 10 Lakhs compensation to the father of a boy who died in 2011 after receiving injuries while playing cricket in the school premises. While holding the school liable for contributory negligence, a Single Bench of Justice Arindam Sinha held, "Court is convinced there was contributory negligence on part of the school leading to loss of the young life. In the circumstances, following judgment dated 11th August, 2022 (supra) and order dated 30th September, 2021(supra), there will be direction upon opposite parties, jointly and severally, to pay compensation of Rs.10,00,000/- to petitioner within four weeks from date."

Appellate Authority To Bear In Mind The Predicaments Faced By Taxpayers On Introduction Of GST Procedures: Orissa High Court

Case Title: Durga Raman Patnaik Vs Additional Commissioner of GST

Citation: 2022 LiveLaw (Ori) 149

The Orissa High Court held that the Appellate Authority should have borne in mind the predicament faced by taxpayers on the introduction of a new set of procedures by way of the promulgation of the CGST Act and rules and that time is required to be taken to get acquainted. The Division Bench of Justice Jaswant Singh and Justice Murahari Sri Raman was constrained to exercise its writ jurisdiction to undo prejudice and injustice caused to the petitioner as the Appellate Tribunal was not constituted as per Section 109 of the CGST Act. There was no alternative remedy available for the petitioner to question the veracity of the order passed in the first appeal.

[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."

Orissa High Court Refuses To Discharge Ex-Advocate General Ashok Mohanty In Case Linked With Artha Tatwa Scam

Case Title: Asok @ Ashok Mohanty v. Republic of India

Citation: 2022 LiveLaw (Ori) 151

The Orissa High Court denied relief to former Advocate General ('AG') for the State, Ashok Mohanty, by rejecting his revision petition against a Trial Court order which had dismissed his discharge petition in a case which is allegedly linked with Artha Tatwa ponzi scam. Pradeep Sethy, the proprietor of the Artha Tatwa group of companies allegedly duped a number of innocent investors of their money after offering them to provide higher returns in terms of interests and incentives under various schemes floated by the company and cheap flats/plots under various projects undertaken by the group. While discarding submissions made in favour of the ex-AG, a Single Judge Bench of Justice Sangam Kumar Sahoo observed,

"…on a careful scrutiny, serious deliberations and analysis of the materials on record, it cannot be said that the accusation levelled against the petitioner by the prosecution particularly for the commission of offences under sections 120-B, 409, 468 and 471 of the Indian Penal Code are groundless and that there are no sufficient grounds for proceeding against the petitioner for such offences."

Merely Failing To Certify Victim's State Of Mind Doesn't Make Dying Declaration Unreliable: Orissa High Court

Case Title: Milu @ Rashmi Ranjan Jena v. State of Odisha

Citation: 2022 LiveLaw (Ori) 152

The High Court held that failure on the part of the doctor to certify the 'state of mind' of deceased before recording her/his dying declaration will not make the same wholly unreliable, if the doctor is otherwise satisfied that the victim was in a fit state of mind to give the declaration. While dismissing the appeal, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Chittaranjan Dash held,

"The doctor was very much present when the statement was made and in fact it is the doctor who recorded it. Each case, therefore, turns on its own facts and it cannot be laid down as inviolable general rule that without certification of the state of consciousness of the deceased, a dying declaration recorded without such endorsement should be rejected...Merely because he did not endorse on the bed head ticket that the victim was in a conscious state would not mean that no such statement was ever made by her. The same also holds good for the criticism that the declaration was not in a question-answer form. These are not inviolable mandatory requirements for the acceptance of a dying declaration."

"Protector Turned Perpetrator, Acted Like 'Cunning Cat'": Orissa HC Upholds Conviction Of Primary School Cook For Raping Hostel Inmates

Case Title: Kunjabihari Nayak v. State of Odisha

Citation: 2022 LiveLaw (Ori) 153

The Orissa High Court upheld the conviction and ensuing sentence of 12 years rigorous imprisonment imposed upon a 'cook-cum-attendant' of a Primary School in the district of Phulbani, who was accused of raping three inmates of the school hostel. While expressing shock and condemnation over such an unfortunate incident, a Single Bench of Justice Sangam Kumar Sahoo observed,

"This case gives a sorry state of affairs about the maintenance and security of the Ladies' Hostels where minor girls belonging to Scheduled Caste and Scheduled Tribe Community were staying. Congested room, absence of proper security measures and poor maintenance of the hostel room came into fore while going through the case records and evidence of witnesses. It also appears that the Headmistress of the School and the Hostel Superintendent were not vigilant and acted like the 'blind vulture' for which protector turned perpetrator of the crime and acted like 'cunning cat' and spoiled the lives of the victims."

S.197 CrPC | Sanction Must Be Obtained To Prosecute Public Servant If Impugned Act Has 'Reasonable Nexus' With Official Duty: Orissa HC Reiterates

Case Title: Ajaya Kumar Barik v. State of Odisha & Anr.

Citation: 2022 LiveLaw (Ori) 154

The Orissa High Court reiterated that sanction must be obtained under Section 197 of CrPC if the impugned act of a public servant has a 'reasonable nexus' with his official duty. In other words, the Court was of the view that a public servant cannot be prosecuted, without the aforesaid sanction, for any act done by him/her which has nexus/relation with his/her official duty.

"If the seizure of the vehicle has been carried out in due discharge of official duty, in that case, the learned court below was to demand sanction under Section 197 Cr.P.C. If it is otherwise and that the petitioner did mischief and illegally seized the vehicle by misutilising the authority and official position and committed the excess in the colour of discharging duty, no sanction would be required."

'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 CrPC 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.

Writ Of Certiorari Can't Be Issued To Examine Adequacy Of Evidence Adduced Before Lower Court/Tribunal: Orissa High Court Reiterates

Case Title: Project Officer, Bharatpur Open Cast Project of Mahanadi Coalfields Ltd. v. Darsani Kumar Sahoo & Anr.

Citation: 2022 LiveLaw (Ori) 159

A Division Bench of Justices Arindam Sinha and Sanjay Kumar Mishra clarified that a proceeding cannot be drawn for issuance of the writ of certiorari merely to challenge a finding of fact recorded by a Lower Court/Tribunal, on the ground that the material evidence adduced before the forum was 'insufficient' to sustain the finding. While placing reliance on the ruling of the Supreme Court in Syed Yakoob v. Radhakrishnan, the Court noted:

"…a writ of Certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence, which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law, which can be corrected by a writ of Certiorari. The Court went on to say further that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of Certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding."

Merit List Not A Reservoir For Future Appointments: Orissa High Court Dismisses Plea Filed With 15 Yrs Delay

Case Title: Kalandi Charan Barik v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 160

A Single Judge Bench of Justice Sangam Kumar Sahoo held that a 'select/merit list' cannot be deemed to be a 'reservoir' for the purpose of appointments. While denying appointment to a candidate who approached the Court, 15 years after publication of the select list, the Court placed reliance on the following observations made by the Supreme Court in State of Orissa & Anr. v. Rajkishore Nanda & Ors.:

"A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required. It is the settled legal proposition that no relief can be granted to the candidate if he approaches the Court after expiry of the select list. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the Court at a belated stage."

"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."

Orissa High Court Halts Field Posting Of Police Officer Who Refused To Register FIR In Alleged Murder Case, Orders Sensitization Training

Case Title: Bandhana Toppo v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 163

In a strong action against police inaction and institutional lethargy in registering First Information Report (FIR) in a case involving serious charge like murder, the Orissa High Court directed 'sensitization training' for an Inspector-In-Charge (IIC) in State's Police Academy. It also directed the Commissioner of Police, Bhubaneswar to desist from assigning any 'field posting' to the officer for the next one year. While condemning the acts of the said police officer, the Single Judge Bench of Dr. Justice Sanjeeb Kumar Panigrahi sternly observed,

"The inaction shown by the police is deplored. If there is even a shred of truth in the allegations made herein, such infamy by the police deserves strong condemnation. The core mission of the police is to protect citizens from the undesirable elements of society. But if its actions were to leave the community more vulnerable to criminal victimization, it would undermine the popular confidence in law enforcement."

Orissa High Court Criticizes Special Judge For Unnecessary Citations, Says Precedents Cannot Be Applied Mechanically

Case Title: Suraj Bahadur & Anr. v. State of Odisha

Citation: 2022 LiveLaw (Ori) 164

The Orissa High Court criticised a Special NDPS Judge for mechanical reference to numerous case laws, without there being any relevance of those authorities to the facts and circumstances of the case at hand. While disapproving the manner in which the Special Judge appreciated the evidence on record, a Single Judge Bench of Justice Sashikanta Mishra observed,

"Reading of the impugned judgment reveals that learned Special Judge appears to have made a superficial appreciation of the evidence thereby leaving out the significant omission therein. This Court further observes that learned Special Judge has referred to numerous decisions (27 to be precise). It goes without saying that the case laws are to be applied only to the facts and circumstances of the case at hand and not to be applied mechanically."

'Court Does Not Find It Offensive': Orissa High Court On Veterinarian's Statement About Demand Of Indian Cow Meat Abroad

Case Title: Santanu Kumar Takri v. Gangadhar Nanda

Citation: 2022 LiveLaw (Ori) 165

The Orissa High Court set aside an order of an ADJ-cum-Special Judge (Vigilance) who had ordered the Court below to re-record statements of complainant and witnesses in a complaint case filed against a Chief District Veterinary Officer for citing demand of Indian cow and bull meats abroad while delivering a speech in an event organised for deliberating on the issues of prevention of cruelty to animals. While allowing the petition, a Single Judge Bench of Justice Radha Krishna Pattanaik held,

"In the present case, the petitioner was a Government servant and he participated in a meeting and delivered a speech which was with regard to eating habits of the Indians and on other issues. The petitioner attended the said function as the Chief District Veterinary Officer, Koraput and according to the learned SDJM, Koraput, he had been invited there in his official capacity and the alleged speech was delivered which was without any criminal intent, rather, it was based on his experience and essentially to be an opinion shared or view expressed by him in good faith."