1. State of Odisha & Ors. v. Radhakanta Tripathy & Anr., 2022 LiveLaw (Ori) 109

2. Gobardhan Gadaba @ Gadava v. State of Odisha, 2022 LiveLaw (Ori) 110

3. Naba Krishna Mahapatra v. State of Odisha & Ors., 2022 LiveLaw (Ori) 111

4. Kishore Bira v. State of Odisha, 2022 LiveLaw (Ori) 112

5. M/s. Patel Brothers & Co., Sambalpur v. State of Odisha, 2022 LiveLaw (Ori) 113

6. Chinta Marandi @ Chintamani Marandi v. State of Orissa, 2022 LiveLaw (Ori) 114

7. Pradeep Kumar Sethy v. State of Odisha, 2022 LiveLaw (Ori) 115

8. Rajesh Kumar Agarwal & Ors. v. Regional Director (E), Ministry of Corporate Affairs, Kolkata & Ors., 2022 LiveLaw (Ori) 116

9. Babita Satpathy @ Mishra v. Sitanshu Kumar Dash & Ors., 2022 LiveLaw (Ori) 117

10. Dr. Satya Narayan Bhujabala & Anr. v. Veer Surendra Sai Institute of Medical Science and Research, Burla and Ors., 2022 LiveLaw (Ori) 118

11. State of Odisha represented by Commissioner of Sales Tax, Cuttack v. M/s. Geetashree Industries & Ors., 2022 LiveLaw (Ori) 119

12. Abhisek Acharya & Ors. v. State of Odisha, 2022 LiveLaw (Ori) 120

13. Smrutikant Rath & Ors. v. State of Odisha & Anr., 2022 LiveLaw (Ori) 121

14. Faridabad Gurgaon Minerals v. Orissa Mining Corporation Ltd., 2022 LiveLaw (Ori) 122

15. Tapan Kumar Pradhan v. State of Odisha, 2022 LiveLaw (Ori) 123

16. Reckitt Benckiser (India) Ltd. versus State of Odisha and Others, 2022 LiveLaw (Ori) 124

17. Hansmina Kumari Das & Ors. v. State of Odisha & Ors., 2022 LiveLaw (Ori) 125

18. Nilakantha Tripathy v. State of Odisha & Ors., 2022 LiveLaw (Ori) 126

19. Madhav Soren v. State of Odisha and Others, 2022 LiveLaw (Ori) 127

20. Birla Institute of Management v. Fiberfill Interiors & Constructions, 2022 LiveLaw (Ori) 128

21. Narayan Muduli v. State of Odisha & Ors., 2022 LiveLaw (Ori) 129

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judgments/Orders Reported During July-September:

1. Human Rights Commission Can Only 'Recommend' Compensation U/S 18 Of Protection Of Human Rights Act: Orissa High Court

Case Title: State of Odisha & Ors. v. Radhakanta Tripathy & Anr.

Citation: 2022 LiveLaw (Ori) 109

The Orissa High Court held that Section 18 of the Protection of Human Rights Act, 1993 empowers Human Rights Commission only to 'recommend' and not to direct compensation. Notably, the Section provides for steps to be taken by the Commission "during and after inquiry". A Single Bench of Justice Arindam Sinha observed,

"Section 18 provides for steps during and after inquiry. As aforesaid there was omission by the Commission to conduct inquiry and as such section 18 could not be invoked by it for any of the steps to be taken thereunder. Having said that, the provision only empowers the Commission to recommend."

2. No Legal Mandate That Two Years Must Be Added To Outer Age Limit Determined By 'Ossification Test': Orissa High Court

Case Title: Gobardhan Gadaba @ Gadava v. State of Odisha

Citation: 2022 LiveLaw (Ori) 110

The Orissa High Court held that there is no law that two years mandatorily be added to the outer limit of age as determined by 'ossification test'. While rejecting an argument to that effect, a Single Judge Bench of Justice Sashikanta Mishra observed,

"…there is no law which mandates that in each and every case two years have to be added to the outer age limit determined by the ossification test. It would rather be prudent for the Court to accept the higher range of the age determined by the ossification report which, in the instant case is 16 years."

3. Bar Against 'Inter-District Transfer' Not Applicable To Govt Teachers With Disabilities: Orissa High Court

Case Title: Naba Krishna Mahapatra v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 111

In an important decision, which can be tagged as a remarkable quantum leap in the field of disability jurisprudence, the Orissa High Court held that bar against 'inter-district transfer' cannot be made applicable to teachers who are recognised as persons with disabilities. A Single Judge Bench of Dr. Justice Sanjeeb Kumar Panigrahi observed,

"Hence, it may be concluded that the bar under 1977 rules for inter district transfer shall not be applicable on a person with disability. Moreover, in view of provision of Right of Persons with Disability Act, 2016, read with the Govt. Notification (supra) permits inter district transfer of a person with disability."

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

Case Title: Kishore Bira v. State of Odisha

Citation: 2022 LiveLaw (Ori) 112

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

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

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

Citation: 2022 LiveLaw (Ori) 113

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

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

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

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

Citation: 2022 LiveLaw (Ori) 114

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

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

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

Case Title: Pradeep Kumar Sethy v. State of Odisha

Citation: 2022 LiveLaw (Ori) 115

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

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

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

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

Citation: 2022 LiveLaw (Ori) 116

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

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

9. Objections To Admissibility Of Secondary Evidence Can Be Decided At Judgment Stage, Piecemeal Trial At Pre-Argument Stage Not Necessary: Orissa HC

Case Title: Babita Satpathy @ Mishra v. Sitanshu Kumar Dash & Ors.

Citation: 2022 LiveLaw (Ori) 117

The High Court held that objections raised as to "mode of admissibility" of secondary evidence can be adjudicated upon by Trial Courts at the stage of judgment and there is no strict rule that it must be decided as and when objection is raised or before the commencement of arguments. A Single Judge Bench of Justice Krushna Ram Mohapatra observed,

"It appears that the objection with regard to mode of admission of the document was raised, which is marked as exhibits by filing the instant petition. Since the learned trial Court has kept the objection open to be decided at the time of argument no prejudice will be caused to the Petitioners. Further, once a document has been exhibited with objection the same cannot be expunged from the evidence of the party unless circumstances thereto are established."

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

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

Citation: 2022 LiveLaw (Ori) 118

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

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

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

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

Citation: 2022 LiveLaw (Ori) 119

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

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

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

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

Citation: 2022 LiveLaw (Ori) 120

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

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

13. S.14A SC/ST Act | Order Taking Cognizance & Issuing Summons Is Appealable As It Is An 'Intermediate Order', Not 'Interlocutory Order': Orissa HC

Case Title: Smrutikant Rath & Ors. v. State of Odisha & Anr.

Citation: 2022 LiveLaw (Ori) 121

The Orissa High Court held that an order taking cognizance and issuing summons for offences alleged under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is an 'appealable order' in terms of Section 14-A(1) of the Act. A Single Judge Bench of Justice Aditya Kumar Mohapatra further held that such order cannot be classified as 'interlocutory order' as the same qualifies to be an 'intermediate order'.

"…this Court has no hesitation to hold that the order taking cognizance and issuing summons to the accused person is not clearly an interlocutory order, but an intermediate order. Therefore, the same is appealable in view of the provisions contained under Section 14-A(1) of the S.C. and S.T. (PoA) Act."

Also Read: SC/ST Act | Application U/S 482 CrPC Against Orders Of Cognizance & Issuance Of Summons Maintainable: Orissa HC Differs From Allahabad HC

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

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

Citation: 2022 LiveLaw (Ori) 122

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

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

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

Case Title: Tapan Kumar Pradhan v. State of Odisha

Citation: 2022 LiveLaw (Ori) 123

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

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

16. 12% Sales Tax Applicable On Robinson Barley And Purity Barley: Orissa High Court

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

Citation: 2022 LiveLaw (Ori) 124

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

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

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

Citation: 2022 LiveLaw (Ori) 125

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

18. No Necessity To Give Hearing Before Compulsorily Retiring Judicial Officers Under 2007 Service Rules: Orissa High Court

Case Title: Nilakantha Tripathy v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 126

The Orissa High Court upheld a notification issued by the Government of Odisha, which compulsorily retired a Chief Judicial Magistrate ('CJM') from his service, citing the step to have been taken 'in public interest'. While affirming such notification, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik also held that compulsory retirement is not a punishment; thus, there is no need to give prior hearing to the concerned officer before notifying such retirement. It observed,

"It is now well settled that compulsory retirement is not a punishment and the necessity of giving a hearing to the Petitioner prior to such decision being taken does not arise. This has been explained in a large number of cases including Baikuntha Nath Das v. Chief District Medical Officer, Baripada, (1992) 2 SCC 299…"

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

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

Citation: 2022 LiveLaw (Ori) 127

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

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

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

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

Citation: 2022 LiveLaw (Ori) 128

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

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

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

Citation :2022 LiveLaw (Ori) 129

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

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

22. 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."

23. 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."

24. 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."

25. 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."

26. 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."

27. 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."

28. 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."

29. 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."

30. 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."

31. 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."

32. 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."

33. 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."

34. 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."

35. 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.

36. 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."

37. 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.