BALABHADRA NAYAK-V- STATE OF ORISSA
CRLREV NO.687 OF 2012 (Dt.18.12.2012)
CRIMINAL PROCEDURE CODE, 1973 – S.457.
The words “Police Officer” in Section 457 Cr.P.C. must include an Excise Officer reporting seizure
of vehicle/property to a Criminal Court.
In this case motor cycle of the petitioner was seized by Excise officials for alleged commission of
offence under the NDPS Act – His application U/s.457 Cr.P.C. for release of vehicle was rejected by the
learned Sessions Judge-cum-Special Judge, Ganjam, Berhampur on the ground that the Motor cycle was
seized by Excise officials and not by Police and as such Section 457 Cr.P.C. has no application – Held,
the impugned order is set aside – Direction issued to the trial Court to release the vehicle in question
in favour of the petitioner subject to conditions imposed by this Court.
(B. K. Nayak, J.)
M/S. RANBAXY LABORATORIES LTD. & ANR.-V- STATE OF ORISSA & ANR.
CRLMC. 2541 OF 2008 & CRLREV NO.272 OF 2008 (Dt.15.03.2012)
CRIMINAL PROCEDURE CODE, 1973 – S. 482.
Prosecution report submitted and cognizance taken against accused persons for commission of
offence punishable under a non existent statutory provision – Held, impugned order taking cognizance is
set aside and the Criminal Proceeding is dropped.
(B. K. Patel, J.)
SK. ABDUL AHAD & ANR.-V- STATE OF ORISSA & ORS.
O.J.C. NOS.8819 & 6311 OF 2000 (Dt.17.09.2012)
CONSTITUTION OF INDIA, 1950 – ART.226.
Compensation – Death of three maternity patients with two new born babies due to administration
of contaminated IV fluid (Saline) supplied in SCB Medical College and Hospital, Cuttack – Negligence and
lack of care by Hospital authorities – Violation of right to life of the patients – Held, State to pay
compensation of Rs.5.00 lakhs each to the legal heirs of three maternity patients for the tortious act
committed by its employees and may recover the same from the negligent doctors responsible for their
death and initiate action against Drug Controller of Odisha and EPM Authorities for their lapses and to
expedite departmental action against defaulting doctors.
( V. Gopala Gowda, CJ & B. N. Mahapatra, J.)
PANDA KANOJIA-V- SANKAR BAGHEL & ORS.
R.S.A. NO.266 OF 2004 (Dt.14.03.2012)
CIVIL PROCEDURE CODE, 1908 – S.100.
Substantial question of law – No specific pleading in the plaint regarding adverse possession –
Plaintiff claims title over the suit property basing on an unregistered sale deed – Suit dismissed – Lower
appellate court without assigning reasons reversed the finding of fact and decreed the suit – The above
question assume the character of substantial question of law – Held, judgment passed by the learned
lower appellate court is set aside and judgment and decree passed by the trial Court is restored.
( M. M. Das, J.)
MANORAMA MOHANTY & ORS.-V- AUTHORIZED OFFICER & ORS.
W.P.(C) NO.6913 OF 2008 (With Batch) (Dt.21.12.2012)
SECRUITSATION & RECONSTRUCTION OF FINANCIAL ASSETS & ENFORCEMENT OF SECURITY
INTEREST ACT, 2002 ( in short SARFAESI ACT,2002) – S.13.
Whether the Co-operative Banks are entitled to take action under the SARFAESI Act, 2002, against
the petitioners to enforce the security interest as created by the petitioners while taking loan when dispute
case U/ss. 68 & 70 of the Orissa Co-operative Societies Act, 1962 is pending – Held, pendency of Dispute
Case U/ss. 68 & 70 of the OCS Act does not debar the Co-operative Banks from invoking the provisions
of the SARFAESI Act to enforce security interest for liquidation of loan not repaid.
( M. M. Das, J & C.R. Dash, J.)
HAWKINS COOKERS LTD. & ORS.-V- SRI JAGANNATH TRADERS
CRP. NO.49 OF 2010 (Dt.14.12.2012)
A. CIVIL PROCEDURE CODE, 1908 – O-.14, R-2.
Issue relating to lack of territorial jurisdiction of the Court ought to be decided before the parties
went into trial of the suit.
In this case admittedly on 6.7.2010 the Plaintiff-O.P. filed evidence on affidavit Under Order 18, Rule
4 C.P.C. and the defendant-Petitioners cross-examined P.W.1 – Held, the Defendants-petitioners have
waived their right of raising objection as to territorial jurisdiction of the trial Court and to make a prayer
to try that issue as preliminary issue.
B. CIVIL PROCEDURE CODE, 1908 – O-14, R-2(2).
Where two or more Courts have jurisdiction to try a suit, whether the parties can agree to submit
themselves to the jurisdiction of one of these Courts and oust the jurisdiction of other Courts and if the
answer is in affirmative, whether such an agreement is against the public policy – Held, where two or more
Courts have jurisdiction to try a suit, the parties can agree to submit themselves to the jurisdiction of one
of those Courts and oust the jurisdiction of other Courts and such an agreement is not against the public
policy.
C. CIVIL PROCEDURE CODE, 1908 – O-14, R-2 (2).
Whether the issue of jurisdiction is to be taken up as a preliminary issue – Plain reading of the
provision shows that a suit can be disposed of on an issue of law as preliminary issue if that issue relates
to the jurisdiction of the Court or a bar to the suit created by any law.
In this case trial Court is of the view that the issue relating to jurisdiction should not be decided
as preliminary issue and it can be taken up simultaneously with other issues for effective adjudication of
the lis – Held, trail Court has not committed any mistake in taking such a decision.
( B. N. Mahapatra, J.)
LALIT BERIWALA-V- STATE OF ORISSA & ANR.
CRLMC NO.4792 OF 2011 (Dt.30.11.2012)
NEGOTIABLE INSTRUMENTS ACT, 1881 – Ss. 138, 141.
Commission of offence by company – When the company can be prosecuted then the Director or
any other person in charge of the management of the company can also be prosecuted being vicariously
liable for the offence committed by the company – It is also necessary that there must be clear averments
and proof that the company committed the offence otherwise the individuals issuing the cheque can be
personally held liable U/s.138 N.I. Act.
In this case the petitioner did not enter into the transaction and entrusted the work to the complainant
in his individual capacity but as the authorized agent of the company – Although there is no specific
allegation in the complaint petition that the complainant entered into the transaction with the company,
the combined effect of all the averments make it clear that he transacted with the company through its
authorized agent (Petitioner) for company’s work and received the company cheque which was bounced
– Held, offence must be said to have been committed by the company – Since the company has not been
made an accused, the complaint case filed against the petitioner describing him in his official capacity
is bad hence the order taking cognizance against the petitioner as well as the complaint case are
quashed.
(B. K. Nayak, J.)
GHANASHYAM PATRA & ORS.-V- UNION OF INDIA & ANR.
FAO. NO.260 OF 2006 (Dt.14.12.2012)
RAILWAY CLAIMS TRIBUNAL ACT, 1987 – S.123 (c ).
Untoward incident – Deceased belongs to state of Orissa – Accident occurred when he was alone
moving in a local train in Mumbai – Not expected to get an eye witness – Documentary evidence shows
that the deceased fell down from the running train and sustained injuries – Railway authorities failed to
adduce evidence to establish that claimants are not entitled to compensation – Held, order passed by the
Chairman and Member (Technical) of the Tribunal is set aside and the order passed by the Member
(Judicial) holding that the claimants are entitled for compensation is confirmed.
(B. K. Patel, J. )
SUBASH CHANDRA PANDA-V- STATE OF ODISHA & ORS.
W.P.(C) NO.24213 OF 2011 (Dt.13.12.2012)
SERVICE – Dismissal of petitioner – Petitioner was neither allowed to engage an advocate to
defend his case nor he was permitted to Cross-examine the witnesses examined by the corporation –
Violation of principles of natural justice – Enquiry report submitted by the authority could not have been
accepted by the Disciplinary authority but the same was accepted and second show cause notice was
issued – Past service record of the petitioner was not taken into consideration while imposing major
punishment – Held, punishment imposed is shockingly disproportionate to the charges proved – Impugned
order of removal of the petitioner from service is quashed as the same suffers from doctrine of proportionality.
(V. Gopala Gowda, CJ & B. N. Mahapatra, J.)
DILLIP KUMAR SAHOO-V- MALATI ROUT & ORS.
R.S.A. NO.153 OF 2010 (Dt.14.12.2012)
SPECIFIC RELIEF ACT, 1963 – Ss.31, 34.
Registered document – Presumption is, it is validly executed and prima facie it is valid in law –
Onus lies on the person who wants to rebut such presumption.
In this case plaintiffs plead that fraud practiced on them while executing General Power of Attorney
Ext-1 in favour of Defendant No.2 and the impugned sale deeds Exts-B & C executed by Defendant No.2
in favour of Defendant No.1 are the outcome of such fraud – No prayer in the suit to declare G.P.A. Ext.1
void – Both the Courts below failed to take note of the evidence of plaintiff No.3, examined as P.W.1, that
they were present in the office of the Sub-Registrar on the date of sale of the suit land and raised no
objection against such registration – Held, G.P.A. Ext.1 is a valid document so also the sale deeds Exts.
B & C – Defendant No.1 has acquired title over the suit property on the strength of the above sale deeds
as true owner and acquired right to enforce the right, title and interest over the suit property.
( B. K. Patel, J.)
NARAYAN KEDIA-V- PRASANTA KU. PATTNAIK
R.S.A. NO.462 OF 2006 (Dt.11.12.2012)
A. TRANSFER OF PROPERTY ACT, 1882 – S.106.
Tenancy – Suit for eviction of a tenant by a Co-owner without impeading other co-owners –
Maintainability – Held, one of the successors to the property while in jointness can maintain a suit against
the tenant for eviction from out of the joint property unless a conflict between the Co-sharers is brought
out on evidence.
In this case plaintiff-respondent filed the suit for eviction in the absence of his four sisters who have
joint interest in the property – Jurisprudentially it is not correct to say that a co-owner of a property is
not its owner – He owns every part of the composite property along with others and it cannot be said that
he is only a part owner of the property – The position can only be changed when partition takes place
- The defendant has also not established through evidence any conflict between the plaintiff and his
sisters – Held, Courts below are correct in holding that the suit for eviction is maintainable at the behest
of the sole respondent-Plaintiff.
( M. M. Das, J.)
FALCON REAL ESTATE PVT. LTD. & ANR.-V- JANAK MUKARI DEVI & ORS.
W.P.(C) NOS.11550 & 11685 OF 2012 (Dt.27.11.2012)
CIVIL PROCEDURE CODE, 1908 – O-18, R-17.
Suit for partition – During pendency of Final Decree Proceeding Defendant Nos.3 & 4 were impleded
on the ground that they purchased some property involved in the suit – Thereafter they filed petition to
recall witnesses examined at the stage of preliminary decree for Cross-examination – Application rejected
– Hence this writ petition.
In a suit for partition, in the event of changed circumstances, necessitating change in shares, there
is no impediment for a Court to amend the preliminary decree or pass another preliminary decree re-
determining the rights and interest of the parties – Held, the impugned order is set aside with a direction
to the learned trial Court to recall the witnesses for Cross-examination by the Petitioners-Defendant Nos.3
& 4 after recasting the issues and pass a fresh preliminary decree.
(M. M. Das, J.)
D. TRANSFER OF PROPERTY ACT, 1882 – S.54.
“Profit a prendre” - Meaning of – It is a profit or benefit arising out of the land regarded as
“immovable property” within the meaning of Section 3(26) of the General Clauses Act and Section 2(6) of
the Registration Act.
In this case OSRTC executed an unregistered agreement creating permanent lease with an area
of Ac.14.430 decimals in favour of O.P.5 & 6 for construction of modern Bus Terminus over 60% and
commercial complex over 40% of the above land which is under challenge.
The right to construct modern Bus terminus and commercial complex and to appropriate profit being
a “Profit a Prendre” i.e. profit or benefit arising out of the above land it has to be regarded as immovable
property and its sale has to be by means of a registered instrument as its value is much more than
Rs.100/- - Held, the impugned transaction being under an unregistered instrument it has not conferred title
or interest in favour of OP. 5 & 6.
E. TRANSFER OF PROPERTY ACT, 1882 – Ss. 105 & 107.
Distinction between “lease” and “License” – A lease cannot be converted into a license merely by
calling it as license but it will have to be determined from the recitals of the document itself whether the
nature of transaction entered into between the parties, the interest over the property has been given or
merely a right of user has been given to the adversary.
In this case an interest over the land in question has been conferred upon O.P.5 & 6 by way of
an agreement to enjoy the exclusive possession of the property and to derive profit out of it – Held, this
type of transaction cannot be said to have created a mere license – O.P. 5 & 6 are lessees and not
licenses.
(V. Gopala Gowda, CJ & S. K. Mishra, J.)
KISHORE KALET-V- STATE OF ORISSA & ORS.
CRLMC. NO.1774 OF 2009 (Dt.08.01.2013)
CRIMINAL PROCEDURE CODE, 1973 – S.319.
The Court must have reasonable satisfaction from the evidence already collect
ed during trial or in
the inquiry that some other person, who is not arraigned as an accused in that case has committed an
offence and for such offence that other person could as well be tried along with the already arraigned
accused – However, entertaining some doubt about the involvement of another person in the offence is not
enough for the Court to exercise such discretionary power.
In this case the informant in the F.I.R. and in his Examination-in-Chief stated that he learnt that
O.P.3 & 4 called the victim girl and took her to the bus stand where the accused was waiting – The victim
girl having not stated about the involvement of O.P.3 & 4 in the occurrence before the I.O. or before the
C.J.M. Port Blair or before the S.D.J.M., Rourkela, there is no reasonable prospect of the case against
O.P.3 & 4 ending in conviction – Held, there is no infirmity in the impugned order passed by the trial Court.
( B. K. Nayak, J.)
HARIHAR KHARASUDHA PATNAIK-V- STATE OF ORISSA.
CRLA NO.519 OF 2OO9 (Dt.09.01.2013)
CRIMINAL PROCEDURE CODE, 1973 – S.389 (1).
Power of the Appellate Court – Appellate Court in an exceptional case, may stay conviction and
sentence but such power must be exercised with great circumspection and caution where the appellant
with all fairness satisfies the Court that failure to stay the conviction would lead to injustice and irreversible
consequences.
In this case provisional pension sanctioned in favour of the appellant has been withdrawn as per
Rule 7 of the OCS (Pension) Rules 1992 in view of his conviction – Withdrawal of pension does not amount
to an irreversible consequence since in the event the conviction is set aside in appeal the petitioner would
be entitled to all arrears of pension – Held, the appellant-petitioner is not entitled to any relief sought for.
(B. K. Nayak, J. )
JAYANTA KUMAR SAHU-V- LAXMIDHAR SAHU
W.P.(C) NO.5379 OF 2011 (Dt.16.01.2013)
CIVIL PROCEDURE CODE, 1908 – O-6, R-17.
Amendment of plaint can be filed at any stage of the proceeding and delay is not, always, a factor
to refuse amendment – Primary duty of the Court to shorten litigation and it is not required to go in to
the correctness or falsity of the case in the amendment.
In the present case the proposed amendment are only elucidation of some facts which are already
on record and since no new facts are introduced the learned Court below should not have disallowed the
prayer for amendment – Held, impugned order rejecting the application for amendment is set aside.
(B. K. Misra, J.)
CHANDABAI SHARMA-V- ADDL. D.M, BARGARH & ORS.
W.P.(C) NO.6797 OF 2002 (Dt.21.01.2013)
ODISHA LAND REFORMS ACT, 1960 – S.37 (b).
Ceiling proceeding – Definition of “Family” – Petitioner a married daughter prior to the appointed date
i.e. 26.09.1970 – Ceiling proceeding against her father after his death – Subsequently draft statement was
revised in the name of the petitioner and four others being Class-I heirs of her father.
Held, petitioner being married prior to the appointed date, she cannot be considered to be a member
of the family of her father but she being a Class-I heir of her father each one of such heir would be treated
as a separate and distinct “Family” within the definition of Section 37 (b) of the Act for the purpose of
ceiling proceeding and they cannot also be considered an “association or body of individuals” so as to
be treated as a single person within the meaning of Section 37 (a) of the Act.
ODISHA LAND REFORMS (GENERAL) RULES, 1965 – RULE 30 (2).
Notice in ceiling proceeding – Proceeding against five persons including the petitioner as Class-I
heir of the deceased land holder – Notice not issued in the name of the petitioner – Violation of natural
justice – Issuance of notice to any one of the heirs cannot be treated as sufficient compliance of the
mandate of the Rule – Allegation that the petitioner had knowledge of the proceeding – Held, provision
of Rule 30 (2) of the Rules being mandatory in nature, mere knowledge of the proceeding by a person
interested cannot be a justification for dispensing with service of notice.
( B. K. Nayak, J. )
USHADEVI SUKHANI-V- CUTTACK DEVELOPMENT AUTHORITY & ORS.
W.P.(C) NO.13932 OF 2012 (Dt.30.01.2013)
ODISHA DEVELOPMENT AUTHORITY ACT,
Allotment of residential plots at “Bidanasi Project Area “ – Delay in making construction – Violation
of Clause in the Brochure – Show Cause notice issued calling upon the allottee for cancellation of
allotment/resumption of land – Action challenged.
Clause mentioned in the Brochure are not statutory in nature – Cancellation of allotment if there
is negligence on the part of the allote and the reasons assigned in the show cause are not bona fide –
Action being drastic in nature, should not be done mechanically – Held, cancellation of allotment should
be adopted as a last resort – Fresh directions issued along with the directions issued in W.P.(C) No.20924
of 2009.
(M. M. Das, J.)
SARAT CHANDRA DAS -V- ORISSA STATE WAREHOUSING CORPORATION.
W.P.(C) NO.8628 OF 2011 (Dt.30.01.2013)
SERVICE LAW – Continuance of disciplinary proceeding against petitioner after retirement – Petitioner
an employee in Odisha State Warehousing Corporation and he is governed under Odisha State Warehousing
Corporation (Staff) Regulations 1985 – No specific provision in the Regulation for continuance of departmental
proceeding after retirement – Held, disciplinary proceeding against the petitioner is quashed – Direction
issued for payment of retrial benefits to him forthwith.
( M. M. Das, J & B. K. Misra, J.)
MIDEAST INTEGRATED STEELS LTD. & ORS.-V- STATE OF ORISSA & ANR.
CRLMC. NO.3684 OF 2010 (Dt.04.02.2013)
CRIMINAL PROCEDURE CODE, 1973 – S.482.
Complaint Case – Cognizance taken U/ss. 406, 468, 420, 422,34 I.P.C. – Dispute is basically Civil
in nature – No prima facie material to find out that the offences for which cognizance taken have been
committed in the instant case – Continuance of Criminal Proceeding will be nothing but an abuse of the
process of law – Held, order taking cognizance as well as the complaint proceeding quashed.
( M. M. Das, J.)
ANANTASWAR DEB & ORS.-V- HARIHAR ACHARYA.
W.P.(C) NO.9098 OF 2004 (Dt.05.02.2013)
CIVIL PROCEDURE CODE, 1908 – O-6, R-17.
Amendment of written statement – Objection raised that it was filed after closure of evidence – Trial
Court allowed amendment – Order challenged.
In this case suit is of the year, 1999 – As proviso to Order 6, Rule 17 C.P.C. was inserted w.e.f.
1.7.2002 in view of the C.P.C. Amendment Act, 2002 it has no application to the suit filed in the year 1999
– Held, impugned order passed by the learned Court below calls for no interference by this Court.
( B.K. Misra, J.)
SUSHANTA KUMAR GOUDA-V- UNION OF INDIA & ORS.
W.P.(C) NO.7984 OF 2010(Dt.07.02.2013)
SERVICE LAW - Petitioner belonged to a Para-Military Organization – He remained un-authorizedly
absent from duty for 511 days – Plea that he was looking after his ailing mother in the absence of any
other male member in the family was not believed – Punishment of removal from service cannot be said
as disproportionate or shocking – Held, order of removal from service is justified.
( M. M. Das, J & B. K. Misra, J. )
BAIJAYANTI SWAIN & ANR.-V- STATE OF ORISSA.
CRLREV NO.701 OF 2012 (Dt.07.02.2013)
PENAL CODE, 1860 – S.120-B.
Criminal Conspiracy – Offence of Criminal Conspiracy has its foundation in an agreement to commit
an offence – A conspiracy consists not merely in the intention of two or more, but in the agreement of
two or more to do an unlawful act by unlawful means.
In the instant case there is no allegation of any understanding or agreement by the petitioners with
the Vice-Chairman of CDA (co-accused) to cause a pecuniary gain either to the co-accused or to the
petitioners – Held, framing of charge against the petitioners was unwarranted hence the impugned order
is set aside.
( B. K. Nayak, J.)
KRUSHNA BISOI-V- DHANESWARI BISOI & ANR.
CRLREV NO. 570 OF 2005 (Dt.07.02.2013)
CRIMINAL PROCEDURE CODE, 1973 – S.401.
Offence U/ss. 450 and 376 I.P.C. – Acquittal of the accused by the trial Court – Finding of the trial
Court regarding the age of the victim based on no evidence – Examination of the father of the victim was
illegally dispensed with who is competent to tell about the age of the victim – Trial Court failed in
discharging its duty as required under law, causing miscarriage of justice – Lower revisional Court rightly
set aside the order of acquittal directing retrial by examining the father of the victim and arranging medical
examination of the victim for determination of her age at the time of occurrence – Held, impugned revisional
order calls for no interference.
(B. K. Nayak, J.)
SUKANTI CHOUDHURY -V- STATE OF ORISSA
CRLREV NO.1407 OF 2008 (Dt.08.02.2013)
PENAL CODE, 1860 – Ss. 420, 468, 471.
Offence of cheating and forgery – To establish the offence fraudulent or dishonest intention of the
accused is required to be proved.
In this case prosecution alleged that the petitioner used forged High School Certificate issued by
the Board of Secondary Education Orissa – No material that the petitioner had any role to forge and
procure the certificate – No inference also can be made on the basis of surmises and conjectures in a
Criminal Proceeding – In the absence of any material to indicate existence of the essential ingredient of
required knowledge or intention, continuance of the Criminal proceeding against the petitioner will amount
to an abuse of process of Court – Held, impugned order taking cognizance is set aside and the Criminal
Proceeding is dropped.
(B. K. Patel, J.)
ANANDA CHANDRA OJHA-V- ASHOK SAHOO
W.P.(C). NO.1698 OF 2013 (Dt.13.02.2013)
ELECTION DISPUTE – Grama Panchayat Election – Recounting of votes – When can be ordered
– Election Petition seeking re-counting of votes must contain serial number of ballots illegally accepted
or rejected and the source of information – The name of the agent who had furnished such information
and the note book on the basis of which such details had been furnished must be disclosed in the election
petition out of which the Tribunal must be prima facie satisfied that in order to decide the dispute between
the parties such an order is imperatively necessary.
In the present case learned trial Court is totally misconceived regarding pleadings raised and the
evidence adduced by the election petitioner while passing the impugned order – Held, the impugned order
is set aside – Direction issued to the learned trial Court to proceed with the trial.
(Sanju Panda, J. )
SIBA PRASAD NAYAK-V- THE DIRECTOR, HEALTH SERVICE & ORS.
W.P.(C) NO.1417 OF 2013 (Dt.20.02.2013)
CONSTITUTION OF INDIA, 1950 – ART.21.
Right to life – Petitioner’s Son suffered from a debilitating disease – Duty of the Government to
provide necessary medical assistance to its citizens and employees.
In this case petitioner’s Son suffered from the disease “Muscular Dystrophy” and his application for
referral certificate was rejected on the ground that the disease is not curable and “Stem-cell-theory” for
muscular disease is still a research initiative not ethically approved method for treatment and experimental
or researched initiative does not fall within the meaning of the term “treatment” and the institution to which
the reference has been sought was not duly approved by the State Government.
Treatment cannot be deemed to apply only to cure but also it includes all steps taken in order to
cure an injury or disease and would include all steps which would “arrest the disease from further
deterioration” – Held, direction issued to O.P.1 to 5 to issue referral certificate to the son of the petitioner
within three days and O.P.6 is directed to sanction maximum limit of medical advance in favour of the
petitioner for the treatment of his son at Chaitanya Hospital, Chinchwad, Pune (Maharashtra) which is an
approved referral hospital permitted by the Government of India.
( Indrajit Mahanty, J & Raghubir Dash, J.)
RAJENDRA PATEL -V- STATE OF ORISSA.
CRLA NO.228 OF 2009 (Dt.27.02.2013)
PENAL CODE, 1860 – S.376.
Rape – Rape is not merely a physical assault, it is often destructive of the whole personality of
the victim and degrade the very soul of the helpless female – In this type of offence a conviction can be
founded on the testimony of the prosecutrix alone and it is the duty of every Court to award proper
sentence having regard to the nature of the offence and the manner in which it was committed – Held,
finding of the trial Court is confirmed except the age of the victim girl and the sentence is modified to the
extent that the accused-appellant is sentenced to undergo imprisonment for the period already undergone
by him and to pay a fine of Rs.50,000/- which is to be paid to the victim.
( Sanju Panda, J.)
KONAPALU SURYANARAYANA -V- STATE OF ORISSA
CRLREV. NO.733 OF 2011 (Dt.01.03.2013)
CRIMINAL PROCEDURE CODE, 1973 – S.228.
Framing of charge – Court has power to shift and weigh the evidence to find out whether a prima
facie case against the accused has been made out.
Even if the petitioner had not touched the tainted currency notes kept on his table but the statement
of witnesses clearly reveal the factum of demand and acceptance of bribe – Held, framing of charges
against the petitioner U/s.7, 13 (2) read with Section 13 (1) (d), P.C. Act by the impugned order cannot
be faulted with.
( B. K. Nayak, J.)
LAXMAN PRUSTY-V- STATE OF ORISSA
CRLREV. NO.742 OF 2012 (Dt.07.03.2013)
CRIMINAL PROCEDURE CODE, 1973 – S.227.
Petitioner alleged to have tampered his date of birth in service record – He retired in 1986 but F.I.R.
lodged in 2002 – Initiation of Criminal Proceeding being barred Under Rule 7 (2) (c ) of Orissa Civil Service
(Pension) Rules, 1992 he filed an application for discharge – Application rejected on the ground that
charge already framed against the petitioner – Hence this revision.
Criminal Proceeding itself being not maintainable, no charge could have been framed against the
petitioner, even though, cognizance has already been taken – Held, mere taking of cognizance does not
debar the Court to consider the question of maintainability of the proceeding at the time of hearing on
charge – Held, impugned order is set aside and the Criminal Proceeding is quashed.
(B. K. Nayak, J.)
DEBASIS ROUT –V- MANOJ KUMAR PARIDA
CRLREV. NO.20 OF 2012 (Dt.07.03.2013)
NEGOTIABLE INSTRUMENTS ACT, 1881 – S.147.
Offence U/s. 138 N.I. Act – Joint petition by the complainant and the accused for compounding of
the offence – Held, such compounding can be made at any stage of the proceeding i.e. during appeal,
revision or even before the Supreme Court.
In this case complainant has already received the compensation amount of Rs.65,000/- and he has
no objection if order of conviction and sentence against the petitioner is set aside – Held, petition for
compounding the offence is allowed – Order of conviction and sentence passed by the trial Court is set
aside and the petitioner is acquitted of the charge U/s.138 N.I. Act subject to deposit of Rs.8400/- by way
of cost with the Orissa State Legal Services Authority, Cuttack.
(B. K. Nayak, J.)
PRAKASH PATTNAIK-V- THE CHAIRMAN, P.N.B. & ANR.
W.P.(C) NO.175 OF 2007 (Dt.12.03.2013)
SERVICE LAW - Compassionate appointment – Object of the scheme is to help the family of the
employee dying in harness and leaving his family in penury without any means of livelihood – Held, it is
important to assess the financial condition of the family of the deceased employee to determine the
eligibility for compassionate appointment, which cannot be claimed as a matter of right.
In this case the family of the petitioner received Rs.6.20 laks as terminal dues and Rs.3.57 laks
on account of other investments and the family has owned a residential house besides a piece of land
and as such the dependant of the deceased employee are not in penury, without any means of livelihood
– Held, the Bank has rightly rejected the application of the petitioner for compassionate appointment.
(M. M. Das, J & S.C. Parija, J.)
INDIAN RED CROSS SOCIETY-V- BANKANIDHI MISHRA
W.P.(C) NO.6890 OF 2012 (Dt.15.03.2013)
A. PAYMENT OF GRATUITY ACT, 1972 – S.4.
Payment of Gratuity – Whether entitlement of an employee under the Act, 1972 can be curtailed
by Rules, 2001 framed by the petitioner-society – Held, No.
In this case O.P.1 served the petitioner-society as Director for more than 28 years – As per his last
drawn salary he is entitled to gratuity of Rs.3,48,034 under the Act, 1972 but the petitioner-society paid
him only Rs,50,000/- as per Clause 28 (a) of the service Rules, 2001 framed by it – Held, statutory
entitlement available to an employee can not be curtailed by the petitioner-society by framing any Rule
of its own – There is no infirmity or illegality in the impugned order passed by the Controlling Authority
under the payment of Gratuity Act-cum-Labour Commissioner, Cuttack directing the petitioner to deposit
further amount of Rs,3,00,000/- with 10% interest P.A., calling for interference by this Court.
B. PAYMENT OF GRATUITY ACT, 1972 – S.1(3)(B).
Whether the petitioner, Indian Red Cross Society Orissa Branch comes within the meaning of
“establishment” U/s. 1 (3) (B) of 1972 Act – Held, Yes.
The petitioner society sells blood, conducts different pathological/medical tests and collected fees
from the customers – Held, petitioner comes within the meaning of establishment U/s.1 (3) (b) of the Act.
C. PAYMENT OF GRATUITY ACT, 1972 – S.4.
Whether provisions of payment of Gratuity Act, 1972 is applicable to the employees of Indian Red
Cross Society – Held, Yes.
(B. N. Mahapatra, J.)
ISWAR CHANDRA DASH-V- FIRST ADDL. DIST. & SESSIONS JUDGE, CTC. & ORS.
W.P.(CRL.) NO.279 OF 2013(Dt.25.03.2013)
A. CRIMINAL PROCEDURE CODE, 1973 – S.439 (2).
Cancellation of bail – Conduct subsequent to release on bail and other supervening circumstances
are relevant.
Once bail granted to an accused and application U/s.439 (2) Cr.P.C. filed before the said Court and
the Court finds that the accused while on bail has misused his liberty and has acted in such manner which
is prejudicial to the case of the prosecution, i.e. if the accused has attempted to gain over witnesses,
has committed further criminal acts on the informant or any other person belonging to the prosecution
party or has attempted to threaten the witnesses, the bail granted earlier to him can be cancelled by the
Court granting such bail.
B. CRIMINAL PROCEDURE CODE, 1973 – S.439 (2).
Cancellation of bail – A bail order once granted can only be cancelled under the provisions of
Section 439 (2) Cr.P.C. and not otherwise.
C. CONSTITUTION OF INDIA, 1950 – ART.226.
Writ petition to set aside the order granting bail – Questioning public accountability on the part of
the learned Court below who granted such bail – Held, writ petition is not maintainable since remedy
available to the petitioner to move appropriate application U/s.439 (2) Cr.P.C.
(M. M. Das, J & B. N. Mahapatra, J. )
No comments:
Post a Comment