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Orissa High Court Quarterly Digest:...

Orissa High Court Quarterly Digest: January-March 2022 [Citations 1-36]

Jyoti Prakash Dutta

13 Jun 2022 1:51 PM IST

1. '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.

2. '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."

3. 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.

4. 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."

5. 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".

6. 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.

7. 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.

8. 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."

9. 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.

10. 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.

11. 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.

12. "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) 12

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.

13. 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) 13

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.

14. 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.

15. '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.

16. 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."

17. 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.

18. 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.

19. 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'.

20. 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.

21. 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.

22. 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.

23. "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."

24. 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."

25. 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.

26. 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.

27. 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.

28. "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."

29. 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."

30. 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."

31. 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."

32. 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."

33. 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."

Accordingly, the Court proceeded on to direct the following:

On or before 15th April 2022, the State shall pay Rs.50,000/- as ex gratia amount to the victims (if alive) and the next of kin of the victims who have died, on account of the COVID-19 disaster whose names have been mentioned in the report of Shri A.B.S. Naidu, Retired District Judge;

Rs. 5 lakhs shall be paid each to the families of the two victims who died, as compensation for their respective deaths on account of the medical negligence. This will be in addition to Rs.50,000/- ex gratia amount which will be payable to the said families.

34. 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.

35. 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."

36. 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.