Orissa High Court Monthly Digest - January 2023 [Citations 1-13]

Animesh Chakraborty v. State of Odisha, 2023 LiveLaw (Ori) 1

Vedanta Limited, Jharsuguda v. Union of India, 2023 LiveLaw (Ori) 2

Soli @ Sulachana Jena & Anr. v. Chief Executive Officer, NESCO (Electrical), Balasore & Anr., 2023 LiveLaw (Ori) 3

Sk. Jumman @ Badruddin v. State of Odisha, 2023 LiveLaw (Ori) 4

Santosh Kumar Nayak v. State of Odisha, 2023 LiveLaw (Ori) 5

Girish Prasad Mishra & Anr. v. Smt. Lopamudra Kar, 2023 LiveLaw (Ori) 6

Shrikant Mohta v. Republic of India (CBI), 2023 LiveLaw (Ori) 7

Mukunda Parichha v. State of Odisha, 2023 LiveLaw (Ori) 8

Gourahari Lenka v. State of Odisha & Ors., 2023 LiveLaw (Ori) 9

Subham Jena & Anr. v. State of Odisha, 2023 LiveLaw (Ori) 10

Bobby Islam v. State of Odisha & Ors., 2023 LiveLaw (Ori) 11

State of Odisha (Vig.) v. Debasis Dixit, 2023 LiveLaw (Ori) 12

V. Vinay v. Srinu Patro & Anr., 2023 LiveLaw (Ori) 13

Judgments/Orders

Orissa High Court Denies Anticipatory Bail To YouTuber Accused Of Taking Drone Shots Of Puri Jagannath Temple

Case Title: Animesh Chakraborty v. State of Odisha

Citation: 2023 LiveLaw (Ori) 1

The High Court rejected anticipatory bail application filed by a YouTuber, who was accused of taking drone-shots and capturing photos and videos of the holy temple of Lord Jagannath at Puri, which comes under the ‘red zone’/ ‘no flying zone’. While denying relief to the petitioner, the single judge bench of Justice Chittaranjan Dash said:

“It is expected from a law-abiding citizen more particularly from a person in the stature of the Petitioner who claims to have gained experience of getting photographs and videograph of the monuments and heritage of importance irrespective of being a tourist or freelancer to adhere to a minimum caution by obtaining permission from the temple authority, if at all he had intention to take the over view of the Temple or its surroundings. Absence of it raises the question of bonafideness.”

Vedanta Claimed Unutilized ITC Refund, No Scope For Supplementary Refund Application Based On Fresh Calculation: Orissa High Court

Case Title: Vedanta Limited, Jharsuguda v. Union of India

Citation: 2023 LiveLaw (Ori) 2

The Orissa High Court held that Vedanta has claimed the refund of the unutilized input tax credit on account of zero-rated supplies by clubbing up all the transactions relating to three units. It held that there is no scope to insist on consideration of a supplementary refund application based on a fresh calculation made by taking individual unit-wise transactions into account.

The Division Bench of Chief Justice S. Muralidhar and Justice Murahari Sri Raman further observed that Rule 89(4) of the Central Goods and Services Tax Rules, 2017 is intra vires. The rule is framed in conformity with the powers conferred on the government under Section 164 of the Central Goods and Services Tax Act, 2017, and there is no necessity to read down Rule 89(4).

Orissa High Court Orders Rs. 2 Lakhs Compensation To Family Of Man Who Died In 2001 After Coming In Contact With Live Electric Wire

Case Title: Soli @ Sulachana Jena & Anr. v. Chief Executive Officer, NESCO (Electrical), Balasore & Anr.

Citation: 2023 LiveLaw (Ori) 3

The High Court ordered two lakhs’ rupees compensation to the wife and son of a man who died after coming in contact with a live electric wire in 2001. While allowing the writ petition, the Single Judge Bench of Justice Biswanath Rath reprimanded the electricity department and said:

“The representation claiming compensation was filed in 2001. It is not expected that the Department shut down its eyes even after filing of Writ Petition forget if to take steps for minimal enquiry on a representation being filed at least to have a fact finding report. The Writ Petition was even filed in 2010.”

Precedents Can’t Be Read As Euclid’s Theorem, Must Be Applied In Context: Orissa High Court

Case Title: Sk. Jumman @ Badruddin v. State of Odisha

Citation: 2023 LiveLaw (Ori) 4

The High Court reiterated that judgments cannot be construed mechanically in adjudication of cases and those must be applied having regard for the given facts of a case. While disapproving the manner in which counsel for the petitioner sought to place reliance on certain judgments, the Single Judge Bench of Justice V. Narasingh sternly observed,

“In relying on the said judgments, bereft of the facts in which the same were decided, learned counsel for the Petitioner lost sight of the seminal principle of interpretation of the judgment. Inasmuch as it is trite law that observations in the judgments cannot be read as “Euclid’s theorem”. It has to be applied in the given facts of a particular case.”

Law That Sex On False Promise To Marriage Amounts To Rape Appears To Be Erroneous, Deserves A Relook: Orissa High Court

Case Title: Santosh Kumar Nayak v. State of Odisha

Citation: 2023 LiveLaw (Ori) 5

The Orissa High Court doubted the law holding that sex on false promise of marriage amounts to rape. The Single Judge Bench of Dr. Justice Sanjeeb Kumar Panigrahi questioned the rationality of 'automatic extension' of Section 90 of the Indian Penal Code (IPC) to determine the validity of consent for sex on false promise of marriage and called for a ‘serious relook’ of the same.

“Nonetheless, it radiates from the above discussion that the law is well settled that consent obtained on a false promise to marry is not a valid consent. Hence, the automatic extension of provisions of Section 90 of I.P.C. to determine the effect of a consent under Section 375 of I.P.C. deserves a serious relook. The law holding that false promise to marriage amounts to rape appears to be erroneous.”

Complainant Need Not Cite Detailed Particulars Of Every Single Act Of Domestic Violence In Complaint: Orissa HC Refuses To Quash Case Against In-Laws

Case Title: Girish Prasad Mishra & Anr. v. Smt. Lopamudra Kar

Citation: 2023 LiveLaw (Ori) 6

The Court clarified that a complainant need not mention the detailed particulars of every single act of domestic violence in the complaint itself. Thus, even a prima facie disclosure of acts of violence would be sufficient to maintain a complaint under the Domestic Violence Act. While rejecting a revision petition praying to drop the proceedings, the Single Judge Bench of Justice Sashikanta Mishra observed,

“After perusing the complaint petition, this Court is of the considered view that some allegations have been made undoubtedly in general terms but then it is not expected of the complainant to cite the detailed particulars of every single such act that may be treated as an act of domestic violence.”

Orissa High Court Allows Shrikant Mohta To Travel To Thailand For Film Production, Directs Trial Court To Release His Passport

Case Title: Shrikant Mohta v. Republic of India (CBI)

Citation: 2023 LiveLaw (Ori) 7

The Court directed the trial court to release the passport of Bengali film producer Shrikant Mohta, who is an accused in multi-crore Rose Valley chit fund scam, to enable him to travel to Thailand for the purpose of film production. Mohta was granted bail by the Supreme Court in 2021 on health grounds. Justice Radha Krishna Pattanaik said since Mohta is a known figure in the entertainment industry based at Kolkata, there is a remote chance of his absconding and staying away from the limits of the trial court. The bench also noted that investigation has been concluded and there is no material placed on record to show that he had ever misutilised the liberty granted after release on bail.

Rape | ‘Too Broad A Generalization’ To Hold That A Woman Would Never Speak Something Affecting Her Character: Orissa HC

Case Title: Mukunda Parichha v. State of Odisha

Citation: 2023 LiveLaw (Ori) 8

The Orissa High Court observed that it is “too broad a generalization” to hold that a woman would never speak which will be detrimental to her character and estimation. Therefore, in rape cases, the rule that version of the prosecutrix need no corroboration cannot be taken as a ‘rigid formula’ in adjudication of every single case. While allowing an appeal against conviction for rape, a Single Judge Bench of Justice Sashikanta Mishra held:

“Learned Court below has also considered the theoretical possibility that a woman ordinarily would not like to speak about something affecting her character and estimation. While the above may be a plausible presumption of the conduct of a woman subjected to rape the same would be too broad a generalization to be accepted in every case as a rigid formula.”

Second Writ Petition Seeking To Enforce Order Made In An Earlier Writ Petition Is Maintainable: Orissa High Court Reiterates

Case Title: Gourahari Lenka v. State of Odisha & Ors.

Citation: 2023 LiveLaw (Ori) 9

The Orissa High Court reiterated that a second writ petition, which is filed seeking enforcement of order made in an earlier writ petition, is maintainable. While clarifying the position, the Single Judge Bench of Justice Arindam Sinha relied upon the decision of the Calcutta High Court in Indrapuri Studio v. State of West Bengal, 2003 (3) Calcutta High Court Notes (CHN) 148, wherein the Court had quoted the following para from the judgment in Bibekananda Mondal v. State of West Bengal, (2003) 1 WBLR (Cal) 213.

“It is therefore, settled law that the second writ application is maintainable for implementation of an earlier order of the writ Court. This Court must issue proper directions for proper implementation of previous directions. Where there has been an order, the order must be complied with. An act done is wilful disobedience of a Court Order is not only contempt, but also, an illegal and invalid act. The language used in Article 226 of the Constitution of India is couched in comprehensive phraseology and the said Article recognizes a very wide power on the High Courts to remedy injustice wherever it is found.”

JJ Act | Child In Conflict With Law Can Seek Anticipatory Bail U/S 438 CrPC: Orissa High Court

Case Title: Subham Jena & Anr. v. State of Odisha

Citation: 2023 LiveLaw (Ori) 10

The High Court held that the provision of anticipatory bail as provided under Section 438 of the Code of Criminal Procedure will be applicable to ‘children-in-conflict-with-law’ (CCLs). The Single Judge Bench of Justice Sashikanta Mishra rejected the argument that since there is no provision for ‘arrest’ under the Juvenile Justice Act, anticipatory bail cannot be granted as ‘anticipation of arrest’ is a pre-condition for grant of bail. The Court said,

“…merely because the word ‘arrest’ has not been used in the JJ Act, cannot operate to the detriment of a child in conflict with law, who has reason to believe that he may be apprehended in a non-bailable offence. This would tantamount to placing undue restrictions on a Person’s right to liberty guaranteed under Article 21 of the Constitution of India.”

'Throws Integrity Of Art To The Wolves': Orissa High Court Quashes List Of State Film Awardees Over Plagiarism & Uncredited Remakes

Case Title: Bobby Islam v. State of Odisha & Ors.

Citation: 2023 LiveLaw (Ori) 11

The Court nullified and set aside the list of awardees for the coveted 31st Odisha State Film Awards, 2019 on the ground that two films were found to be placed in the list in utter violation of the Odisha State Films Awards Rules. A Single Judge Bench of Dr. Justice Sanjeeb Kumar Panigrahi, after verifying the allegations, discovered the movies to be plagiarised and copied from films of other languages and thus, observed:

“After ocular verification of the films, it appears that the two films, i.e., “KHUSI” & “GOLMAL LOVE” are heavily inspired from the alleged non-Odia films at least. Considering a comparison of the impugned films with the plot and scenes in the Korean film ‘HOPE’ and Punjabi film “CARRY ON JATTA”, it is clear that from the plethora of facts, circumstances and stated overlap that the impugned motion films are uncredited remakes of the aforementioned non-Odia films.”

S. 378 CrPC | Right To Appeal Against Acquittal Should Be Used By The State Sparingly: Orissa High Court

Case Title: State of Odisha (Vig.) v. Debasis Dixit

Citation: 2023 LiveLaw (Ori) 12

The Orissa High Court advised the State to exercise its right to appeal against acquittal, as provided under Section 378 of the Cr.P.C., sparingly and with circumspection. While denying the leave to prefer an appeal, the Single Judge Bench of Justice Sangam Kumar Sahoo remarked,

“The right of appeal against acquittal vested in the State Government should be used sparingly and with circumspection and it is to be made only in case of public importance or where there has been a miscarriage of justice of a very grave nature.”

S.9(2) JJ Act | Court Must Undertake Inquiry Before Rendering Decision On Plea Of Juvenility Of Accused: Orissa High Court

Case Title: V. Vinay v. Srinu Patro & Anr. and another connected matter

Citation: 2023 LiveLaw (Ori) 13

The High Court clarified that when a plea of juvenility is made before a Court, other than a Juvenile Justice Board, it must undertake an inquiry and take evidence, if any as per the mandate of Section 9(2) of the Juvenile Justice Act, before rendering any decision on the application. While setting aside an order for non-compliance of the above provision, the Single Judge Bench of Justice Sashikanta Mishra observed:

“…when such a claim is raised before a court not being a Juvenile Justice Board, it is for the said court to make an enquiry, take such evidence as may be necessary to determine the age and to record a finding in the matter basing thereon. Of course, in doing so, the provisions under Section 94 of the Act can also be considered but the Statute requires that an enquiry should be made and if necessary, evidence may also be taken.”

Other Developments

Orissa High Court Records 133.60% Case Clearance Rate In 2022; Statistics Went Up To 177% For District Judiciary

The Orissa High Court recorded 133.60% of Case Clearance Rate (CCR) in the year 2022. As per the press statement released by the High Court, the pending cases at the end of the year stood 34,352 cases less than what it was at the beginning of the year. It further noted:

“In the current year i.e. from 1st January, 2022 to 23rd December, 2022 (till Winter Holidays) 1,02,247 cases were instituted and a whopping 1,36,599 cases were disposed of at a Case Clearance Rate (CCR) of 133.60%. The opening balance of the year, 2022 was 1,96,662 cases and at present the pendency of case is considerably reduced as it stands now at 1,62,310 cases. In the current year, 8769 cases of more than 10-year-old were disposed of.”

It also revealed, while 5,00,404 cases were instituted in the District Courts till 30th November, 2022, the corresponding figure for the whole year of 2021 was 4,34,810. Similarly, 4,47,733 cases were disposed of in 2022 by the District Court in comparison to 2,38,588 cases in 2021, which is 53.28% more than the preceding year.

Don't Release Salaries Of Collector, Other Officials For Failure To Release Compensation To Persons For Land Acquired In 1961: Orissa High Court

Case Title: Pramod Kumar Pradhan v. Principal Secretary, Water Resources Department, Bhubaneswar and others

Case No.: W.P.(C) No. 28354 of 2013 & CONTC No. 5149 of 2022

The High Court directed that the salaries of Collector, Angul and two other senior officers of the district administration shall not be released till payment of compensation to the people whose land was acquired in 1961. The Division Bench of Justices Dr. Bidyut Ranjan Sarangi and Biraja Prasanna Satapathy passed the order on January 16 and further said that "only on payment of compensation, if any application is filed that the petitioners have been paid their compensation, then release of salary of the concerned officers shall be considered by this Court."

Orissa High Court Requests State Govt To Approve Comprehensive Action Plan For Protection Of Elephants

Case Title: Gita Rout v. State of Odisha & Others

Case No.: W.P.(C) No. 14706 of 2022

The High Court requested the State Government to expeditiously approve the Comprehensive Action Plan (CAP) submitted by the Chief Conservator of Forests to tackle the problem of human-elephant conflict and to protect elephants from various man-made hazards. The Court was apprised of the requirement of approval of the High-Power Committee of the State Government before the CAP can be rolled out. Accordingly, the Court said,

“Considering that the action plan has been drawn up after consulting a wide range of actors as well as experts and the inputs of others as suggested by this Court in its previous orders, and considering that the problem requires urgent attention, the Court requests the High Power Committee through the Chief Secretary to immediately take up this issue of approval of the Comprehensive Action Plan without any delay and preferably within a period of two weeks from today.”

Odisha Chief Minister Lays Foundation Stone Of High Court’s Centre For Judicial Archives

The foundation stones for the 'Centre for Judicial Archives' of Orissa High Court and High Court employees' residential complex were laid by the state Chief Minister Naveen Patnaik in the presence of Justice Vineet Saran, former Judge of the Supreme Court. Chief Justice of Orissa High Court Dr. S. Muralidhar alongwith other judges of the High Court attended the event. Chief Minister Patnaik said the idea of Judicial Archives is a unique initiative of the High Court and the first of its kind in the country. He said an archive is not only the collection of the documentary heritage of the nation but also the collective memory of the institution and passive witness to history.

Orissa High Court Notifies Scheme For ‘Lawyer Of The Year Award’ For Young Lawyers From District Courts

The Orissa High Court has notified a scheme for conferring ‘Lawyer of the Year Award’, which was initiated last year. The objective behind the award is to encourage young lawyers practicing in the District Courts, including the outlying stations of the districts. The scheme contains details related to features of the award, eligibility to apply, Jury, selection criteria etc. The High Court has planned to confer the award on April 28th every year, which is observed as the ‘Lawyer’s Day’ across the State of Odisha to commemorate the birth anniversary of Utkal Gouraba Madhusudan Das.