1. Indrajit Sengupta & Anr. v. State of Odisha & Ors., 2022 LiveLaw (Ori) 38

2. Sri Gadadhar Barik v. Sri Pradeep Kumar Jena & Anr., 2022 LiveLaw (Ori) 39

3. Asha Hans v. State of Odisha & Ors., 2022 LiveLaw (Ori) 40

4. Krushna Prasad Sahoo v. State of Orissa & Ors., 2022 LiveLaw (Ori) 41

5. Rohita Mirdha & Ors. v. State of Orissa, 2022 LiveLaw (Ori) 42

6. M/s. Salubrity Biotech Ltd. & Anr. v. Bank of Baroda, Vadodara & Ors., 2022 Live Law (Ori) 43

7. M.G. Mohanty & Anr. v. State of Odisha & Ors., 2022 LiveLaw (Ori) 44

8. M/s Bajaj Electricals Ltd. versus Micro Small and Enterprises Facilitation and Anr., 2022 LiveLaw (Ori) 45

9. Pramod Kumar Rout v. The Superintending Engineer Electrical Circle & Ors., 2022 LiveLaw (Ori) 46

10. Pradeep Kumar Pattnaik v. State of Odisha & Ors., 2022 LiveLaw (Ori) 47

11. Kailash Chandra Panda & Ors. v. State of Orissa & Ors., 2022 LiveLaw (Ori) 48

12. Ashish Thakare v. National Commission for Scheduled Tribes & Ors., 2022 LiveLaw (Ori) 49

13. Smt. Bishnupriya Pattnaik & Anr. v. State of Orissa & Ors., 2022 LiveLaw (Ori) 50

14. Kartik Nag v. State of Odisha, 2022 LiveLaw (Ori) 51

15. Basanta Kumar Sahoo v. Odisha Forest Department Corporation Ltd. & Ors., 2022 LiveLaw (Ori) 52

16. Pradeep Kumar Nath & Anr. v. State of Odisha, 2022 LiveLaw (Ori) 53

17. Pramesh Pradhan@Rani & Anr. v. State of Orissa, 2022 LiveLaw (Ori) 54

18. Manoranjan Das v. State of Orissa, 2022 LiveLaw (Ori) 55

Judgments/Orders Reported this Month:

1. 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."

2. 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."

3. 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."

4. 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."

5. "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."

6. 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."

7. 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.

8. 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.

9. 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.

10. 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.

11. 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."

12. 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.

13. 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."

14. 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."

15. "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.

16. 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."

17. 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."

18. 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."

Important Developments:

· Virtual Platforms Have Enabled Supreme Court To Be Truly A 'National Court': Justice DY Chandrachud

Dr. Justice Dhananjaya Y. Chandrachud joined an event organised by the High Court of Orissa to inaugurate e-filing 3.0 for the High Court and District and Subordinate Courts of the State, Vulnerable Witness Deposition Centres with Virtual Courtrooms in District Court Establishments and Odisha Judicial Workflow Automation System (OJWAS) for paperless office in the High Court. He said that the use of virtual platforms has enabled the Supreme Court to be truly a 'National Court'. It has become a National Court in a participatory sense, wherein access to the highest Court of the land is available to every lawyer of India. Further, he expressed his pleasure and satisfaction over the fact that more young women lawyers were able to access the Apex Court because of video conferencing.

· Virtual Courts Are The Future Of Odisha Judiciary: Odisha Chief Justice Muralidhar

Chief Justice of Orissa High Court Dr. Justice S. Muralidhar spoke at an event organised by the High Court of Orissa to inaugurate e-filing 3.0 for the High Court and District and Subordinate Courts of the State, Vulnerable Witness Deposition Centres (VWDC) with Virtual Courtrooms in District Court Establishments and Odisha Judicial Workflow Automation System (OJWAS) for paperless office in the High Court. He conveyed the gathering that the Chief Justice's court-room has adopted live-streaming since last year and even more judges are interested to stream their court-rooms live. Plans are also there for paperless Courts in District Judiciary. He acknowledged that the State Judiciary has immensely learnt from the experiences of the Odisha Secretariat, which is entirely paperless. Officers of the High Court were sent to the State Secretariat for training. He said, virtual courts are future of the Odisha Judiciary.

· Orissa High Court Dispenses With Filing Hard Copy Of E-Filed Documents Under E-Filing Version 3.0

The Registry of the High Court, on 19^th April, notified that with a view to streamline matters relating to e-filing, whenever a case is e-filed in the High Court of Orissa through e-filing version 3.0, there shall be no requirement of filing hardcopy of the e-filed documents. Further it clarified, if any dispute arises with regard to any e-filed document or any portion thereof, the concerned advocate or litigant shall physically file the original of the relevant e-filed document.

· Orissa High Court Gives Direction To Resolve Dispute Between NALCO & Mahanadi Coalfields Regarding Coal Supply

A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik gave direction to the Secretaries of the Departments of Coal, Power and Mines and the Managing Directors (MDs) of the National Aluminium Company Ltd. (NALCO) and the Mahanadi Coalfields Limited (MCL) to hold a meeting to resolve the ongoing dispute regarding supply of coal to NALCO by MCL.

· Juvenile Justice Law Tends To "Homogenise" Children With Different Behavioural Patterns: Orissa High Court CJ Muralidhar Calls For Reform In Approach

The Orissa High Court, in collaboration with the Department of Women and Child Development, Government of Odisha and UNICEF, organised a Regional Consultation Program on Effective Implementation of Juvenile Justice (Care and Protection) Act, 2015. Amongst others, dignitaries like Justice S. Ravindra Bhat, Judge, Supreme Court of India and Justice Madan B. Lokur, Former Judge, Supreme Court of India took part in the event. Chief Justice of Orissa High Court Dr. Justice S. Muralidhar spoke on the occasion and highlighted certain issues regarding children. He said that whenever we talk of children, we talk about a large group of different ages, different genders, who are grappling with life in different stages and the law tends to homogenise this entire lot as if they have to be treated in a similar way. Whenever we talk of places of safety and observation homes, one of the biggest challenges is that we have very diverse group of children and we are trying to deal all of them together. It poses a huge problem. He stressed that observation homes that we have, we have to see how they should be structured so as to serve the purpose of rehabilitating children and if the present structure does not enable it then how can we change the same. He said, we should not be afraid to ask for changes.

· True Equity & Justice Of Society Depends On How Fairly It Treats Its Children: Justice S. Ravindra Bhat

The Orissa High Court, in collaboration with the Department of Women and Child Development, Government of Odisha and UNICEF, organised a Regional Consultation Program on Effective Implementation of Juvenile Justice (Care and Protection) Act, 2015. Justice S. Ravindra Bhat, Judge, Supreme Court of India and Chairperson, the Juvenile Justice Committee, Supreme Court of India took part and spoke at the event which was also attended by Justice Madan B. Lokur, Former Judge, Supreme Court of India. Justice Bhat stressed that there is a need to equate and provide spaces for the voices that we have to hear. In other words, we have to hear the voices who are traditionally not even heard. He said that the true equity and justice of the society is how fairly it treats its children and the kind of policies it envisions and evolves to ensure that the children become fullest and equal participants as citizens in the nation's journey.