Orissa High Court Monthly Digest: September 2022 [Citations 130-145]

Shakti Singh v. State of Odisha, 2022 LiveLaw (Ori) 130

Pramod Jena & Anr. v. State of Odisha & Ors., 2022 LiveLaw (Ori) 131

Ashok Kumar Gedi v. Jyotrimayee Behera & Ors., 2022 LiveLaw (Ori) 132

Ashis Kerketta & Anr. v. State of Odisha, 2022 LiveLaw (Ori) 133

Sanjit Kumar Mishra & Ors. v. Ranjit Mishra, 2022 LiveLaw (Ori) 134

Dara Singh @ Rabindra Ku. Pal & Ors. v. State of Odisha, 2022 LiveLaw (Ori) 135

Anugraha Narayan Pattnaik v. State of Odisha & Ors., 2022 LiveLaw (Ori) 136

Harekrushna Naik & Ors. v. State of Orissa, 2022 LiveLaw (Ori) 137

Siddhachit Roy v. Rabindra Kumar Mallick, 2022 LiveLaw (Ori) 138

Abhiram Chatria v. State of Odisha & Ors., 2022 LiveLaw (Ori) 139

Tukuna @ Tankadhar Swain v. State of Odisha, 2022 LiveLaw (Ori) 140

Mama @ Bidyut Prava Khuntia v. State of Orissa, 2022 LiveLaw (Ori) 141

Gagan Bihari Patra & Ors. v. State of Odisha & Ors., 2022 LiveLaw (Ori) 142

M/s. Chemflo Industries Pvt. Ltd. versus M/s. KMC Construction Ltd. and Anr., 2022 LiveLaw (Ori) 143

Dr. Srikant Panda v. State of Odisha & Ors., 2022 LiveLaw (Ori) 144

M/s. Jhar Mining Infra Private Limited versus CMD, managing Coalfields Ltd. & Ors., 2022 LiveLaw (Ori) 145

Cases Reported in the Month:

1. 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."

2. 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."

3. 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."

4. 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."

5. 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."

6. 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."

7. 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."

8. 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."

9. 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."

10. 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."

11. 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."

12. 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."

13. 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."

14. 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.

15. 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."

16. 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.

Important Developments:

Orissa HC Directs Chief Forests Conservator To Submit 'Comprehensive Action Plan' To Control Unnatural Elephant Deaths

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

Case No.: W.P.(C) No. 14706 of 2022 & other connected matters

The High Court directed the Principal, Chief Conservator of Forests ('PCCF') to submit 'comprehensive action plan' to control and minimise the rising unnatural deaths of wild animals in general and elephants in particular, across the State. The Division Bench of Chief Justice Dr. S. Muralidhar and Justice Chittaranjan Dash further directed the lawyers and the JTF have to take into consideration the order of the Supreme Court in T.N. Godavarman Thirumulpad v. Union of India (2012) concerning the "Asiatic Wild Buffalo", the judgment of the Karnataka High Court in Suo Motu v. State of Karnataka, the judgment of the Madras High Court in S. Manoj Immanual v. Union of India, W.P. (MD) No. 19711 of 2018 and the decision of the Supreme Court in Hospitality Association of Mudumalai v. In defence of Environment and Animals (2020) while recommending steps to be taken in this direction. It also directed that the measures taken by the State of Assam in tackling similar problems in that state concerning elephant-human conflict will also be examined by the JTF.

Justice Chandrachud Bats For Digitisation Of Court Records, Lauds Orissa High Court Mode

The Orissa High Court observed the 'First Anniversary' of the Record Room Digitization Centre ('RRDC') on Friday at the Odisha Judicial Academy, Cuttack. The event witnessed the virtual presence of Dr. Justice Dhananjaya Y. Chandrachud, Judge, Supreme Court of India and the Chairperson of the Apex Court's E-Committee as the 'Chief Guest'. He expressed his deep sense of appreciation for the Court staff engaged in digitisation in the Orissa High Court, in RRDC and also across different institutions throughout the nation. He sincerely hoped that the initiative is able initiate a meaningful conversation amongst the Bar and the Bench on the need to modernise and transform the justice delivery system for the future. He said,

"I must tell you that what I have seen when I came to the project site last year and what I have seen now, has sown a seed of a thought in my own mind that perhaps we can use this not merely for the Orissa High Court, but the Supreme Court as well."

De-Clogging & Digitisation Of Physical Records Provides More Space To Think: Odisha CJ Muralidhar

The Orissa High Court observed the 'First Anniversary' of the Record Room Digitization Centre ('RRDC') on Friday at the Odisha Judicial Academy, Cuttack. Chief Justice Dr. S. Muralidhar addressed the gathering on the occasion He said, that the RRDC experiment has been a learning one. He stated that for High Court as an institution, it reflected how the working atmosphere in the High Court can improve.

"Unless we had de-clogged those branches and all the piled up disposed of records, we could not have given them a good working environment. So, it's all connected. The better functioning RRDC means a better functioning High Court, a more happy High Court employee, who was able to work in an atmosphere where there is more space, more light, more air and therefore, more space to think."

CJI Lalit Inaugurates Paperless Courts Across 'All 30 Districts' Of Odisha; Lauds E-Initiatives Of Orissa High Court

CJI Uday Umesh Lalit, Justices Dhananjaya Y. Chandrachud and M.R. Shah, Judges, Supreme Court of India inaugurated 34 Paperless Courts across 'all the 30 districts' of Odisha on 17^th September, 2022. Further, to mark the 75^th Anniversary of the High Court, a special 'postal cover' and 'cancellation cachet' along with 6 'picture post cards' featuring the High Court of Orissa were released. While speaking at the event hosted at the Odisha Judicial Academy, Cuttack, the CJI congratulated the Judicial Officers across all the districts of the State of Odisha for voluntarily choosing to adopt paperless Courts. He said,

"All of you deserve congratulations, above all, the High Court of Orissa for showing us a new direction, new light. I wish this gets replicated, repeated everywhere."