Orissa High Court Weekly Round Up: 19 September To 25 September, 2022

Nominal Index:

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

Cases Reported in the Week:

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."

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."

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."

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.

Other Important Development:

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."