Debakanta Ray vs Secretary on 1 October, 2013

Orissa High Court
Debakanta Ray vs Secretary on 1 October, 2013
                                 ORISSA HIGH COURT, CUTTACK
                                       Writ Petition No. 15082 of 2013

           In the matter of application under Articles 226 and 227 of the Constitution of India

                                                      ----------

          Debakanta Ray                                 ...                   Petitioner
                                                      versus
          Secretary, Rotary Club, Puri                  ...                  Opposite party

                   For petitioner                        -             M/s Bhaktahari Mohanty,
                                                                           D.P.Mohanty, R.K.
                                                                          Nayak & T.K.Mohanty

                   For opposite party                    -             M/s Goutam Mukherji,
                                                                           P. Mukherji, S.D. Ray,
                                                                            S. Barik, S. Priyadarsini
                                                                          & Amit Biswal

                                                       -----------

          PRESENT:

                              THE HONOURABLE MR. JUSTICE S.K.MISHRA
          --------------------------------------------------------------------------------------------------
          Date of Hearing - 24.07.2013                  :              Date of Judgment - 01 .10.2013
          --------------------------------------------------------------------------------------------------

S.K. Mishra, J.          The order dated 21.06.2013 passed in Civil Suit No.71 of 2008 of

          the court of Civil Judge (J.D.), Puri is in question in this writ petition.

          2.             Facts are not disputed. The petitioner, being the plaintiff filed a suit

          for declaration and other relief against the opposite party, who happens to be the

          Secretary, Rotary Club, Puri. On 26.08.2008 and on 10.02.2009, two applications

          were filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short

          'the Code'. In both the applications, the petitioner prayed for similar amendment
                                        2


and, therefore, the same were disposed of as per the common order passed by the

learned Civil Judge (J.D.), Puri on 21.06.2013 rejecting the application to

implead State of Orissa as a party to the suit along with amendment petition. The

plaintiff submitted a copy of the notice under Section 80 of the Code and memo

in support of the receipt received by the Collector, Puri. It is not disputed that the

suit was instituted on 15.04.2008, whereas notice was sent in compliance of

Section 80 of the Code on 17.06.2008. Thus, the notice has been sent after

institution of the suit.

3.            The question that arises for determination in the case is whether in a

pending case after complying requirement of Section 80 of the Code, State of

Orissa can be added as party or not. The learned Civil Judge (J.D.), Puri came to

the conclusion that in such an application the State of Orissa cannot be added as a

party after institution of the suit as the requirement of Section 80 of the Code is

mandatory and it is not an empty formality. Assailing such findings, the learned

counsel for the petitioner relies upon the reported cases of Sk. Dofian Hossain

vs. Narayan Keshi and others, 1997 (I) OLR 98 and Sabhu and others vs.

Ramsa and another, AIR 1953 H.P. 123.

4.            In the case of Sk. Dofian Hossain vs. Narayan Keshi and others,

(supra), the facts are different. In that case, the amendment was made prior to

giving notice to the State of Orissa and later on after impletion of the party a

notice was issued that too after remand of the case to the learned District Judge.

Undisputedly, in that case this Court held that no notice was at all served when
                                        3


the petition for amendment is filed. While allowing the plaintiff's prayer at the

first instance, this Court further held that the learned District Judge did not apply

his mind to this legal aspect of the case. This Court further observed that when

the case was remanded, plaintiff served notice through advocate attaching a copy

of the plaint by registered post on 13.05.1995. So, the ratio decided in that case is

not applicable to the case at hand. Further, it appears that the Court was perhaps

of the view that if the requirements of Section 80 of the Code were complied

prior to filing of amendment petition, the State could have been made party by

filing appropriate application. Such is the case in the present suit, where from the

writ petition arose.

5.            In Sabhu and others vs. Ramsa and another, (supra), the High

Court of H.P. has held that at a later stage a notice cannot be served because

Section 80 of the Code provides that such a notice should be given before

institution of the suit.

6.            In the writ petition, the petitioner has averred that he has taken a

plea in the plaint that due to urgency of the situation the defendant has started

minimum construction over the suit property. The plaintiff filed the suit for

injunction only reserving right to implead State of Orissa by way of amendment

after compliance of all requirements,      the learned court below should have

allowed the application in stead of its rejection. However, a careful examination

to the petition filed under Order 6 Rule 17 of the Code, it is seen that the
                                         4


petitioner has no where averred such factual assertion. Thus, it appears that such

assertion is after thought.

7.          Service of notice under Section 80 of the Code is not an empty

formality. The object of such notice is to give concerned Government and public

officer, an opportunity to reconsider the legal position and settle the claim, if so

advised, without landing in any legal battle. The legislative intention behind such

provision is that public money and time should not be wasted on unnecessary

litigation and the Government or the public officer should be given reasonable

opportunity to examine the claim made against them. The provision being

imperative, failure to serve notice complying with the requirement will entail

dismissal of the suit. It is observed that Section 80 of the Code provides that no

suit shall be instituted against the Government or public officer in respect of an

act purporting to be done by such public officer in his official capacity, until

expiration of two months next after notice in writing has been delivered to or left

at the office of the State Government, etc. Thus, notice given under Section 80 of

the Code is to be done prior to the institution of the suit. Since in this case notice

has been issued after institution of the suit and it is not case of the plaintiff-

petitioner that the cause of action against the State of Orissa arose after institution

of the suit during pendency of the same, it cannot be said that the compliance of

Section 80 of the Code during pendency of the suit shall be appropriate and

sufficient. However, in the cases where the cause of action arose later on against

the State, suppose for example, in a case where the subject matter of the suit was
                                          5


acquired by the State after the institution of the suit, then in that case a notice

under Section 80 of the Code can be sent after the institution of the suit and

thereafter the State of Orissa can be impleaded as a party. Such is not a case here.

It is not stated by the learned counsel for petitioner that the cause of action to

implead the State of Orissa as a party to the proceeding arose after the institution

of the suit.

8.             In that view of the matter, this Court is of the opinion that the order

passed by the learned Civil Judge (J.D.), Puri is just and proper and requires no

interference.

               Hence, the writ petition is devoid of merit and the same is dismissed.

Pending misc. case is disposed of as infructuous.



                                                       .......................
                                                        S.K. Mishra,J.

Orissa High Court: Cuttack
Dated, 1st October, 2013/PCD.

High Court Of Orissa: Cuttack vs State Of Orissa on 22 December, 2010

Orissa High Court
High Court Of Orissa: Cuttack vs State Of Orissa on 22 December, 2010
            HIGH COURT OF ORISSA: CUTTACK.
          Criminal Appeal Nos.183, 188, 222, 273 of 1998
                      and G.A. No. 29 of 2001

From the judgment and order dated 20.7.1998 passed by Shri P.K.De,
Sessions Judge, Kalahandi-Nuapada at Bhawanipatna in S.C. No.78 of
1996.                         ---------

(In Criminal Appeal No. 183 of 1998)
Santosh Kumar Das                                     ......             Appellant.
                          - Versus-
State of Orissa                                       ......             Respondent.

              For Appellant            :   Mr. S.S. Swain.

              For Respondent           :   Govt. Advocate.

(In Criminal Appeal No. 188 of 1998)
Sisir Choudhury                                       .......            Appellant.

                            -Versus-
State of Orissa                                        ........      Respondent.

              For Appellant            :   M/s. N.C.Pati, A.K.Mohapatra,
                                                      S.Misra, P.K. Khuntia,
                                                P.K.Singh and S.Mohanty.

              For Respondent           :   Govt. Advocate.

(In Criminal Appeal No.222 of 1998)
Dayanidhi Barik @ Manatu and                                  ......   Appellants.
another.

                            -Versus-
State of Orissa                                              ........ Respondent.

              For Appellants           :   M/s. S.K. Mund, D.P. Das
                                                 and J.K.Panda.
              For Respondent           :   Govt. Advocate.


(In Criminal Appeal No. 273 of 1998)
Rudra Prasad Das                                      ......             Appellant.
                            -Versus-
State of Orissa.                                      ......             Respondent
                                                           2




                   For Appellant          :            M/s       S.K.Mund, D.P.Das
                                                                  and J.K.Panda
                   For Respondent         :            Govt. Advocate.


     (In Govt. Appeal No. 29 of 2001)
     State of Orissa                                                          ........ Appellant.

                                  -Versus-

     Tulu @ Tulasi Prasad Das and others.                                   ......       Respondents.

                   For Apellant           :            Addl. Govt. Advocate.

                   For Respondents. :                  M/s. N.C.Pati, A.K. Mohapatra,
                                                            S.Mishra, S.K.Nanda, A.K.
                                                            Panda (O.Ps. 1 to 4)
                                                       Mr. S.S.Swain (O.P.No. 5).

                                                   ---------

PRESENT:

THE HONOURABLE SHRI JUSTICE PRADIP MOHANTY
AND
THE HONOURABLE SHRI JUSTICE B.K. PATEL

Date of hearing – 21.12.2010 : Date of judgment – 22.12.2010

B.K. PATEL, J. All the five appeals are directed against the
judgment and order passed by the learned Sessions Judge,
Kalahandi-Nuapada at Bhawanipatna in S.C. No. 78 of 1996.

Altogether eight accused persons were facing charges under Sections
147, 148, 324 read with 149, 307 read with 149 and 302 read with
149 I.P.C. before the learned trial court.

2. By the impugned judgment appellants Rudra Prasad Das,
Rohit Barik and Manatu @ Dayanidhi Barik were convicted under
Sections 302 read with 34 I.P.C. and were sentenced to undergo
imprisonment for life. Appellants Rohit Barik and Santosh Kumar Das
were convicted under Sections 307 read with 34 I.P.C., whereas
3

appellant Sisir Choudhury was convicted under Section 307 I.P.C.
Appellants Santosh Kumar Das and Sisir Choudhury were sentenced to
undergo R.I. for five years each but no sentence was awarded to appellant
Rohit Barik under Section 307 I.P.C. in view of sentence awarded to him
under Sections 302 read with 34 I.P.C. Accused Ratan Kumar Agarwal,
who is one of the respondents in the Government Appeal, was convicted
under Section 324 I.P.C. and was sentenced to undergo imprisonment
for the period already undergone by him as an under trial prisoner.
However, accused persons Tulu @ Tulasi Prasad Das and Debe @
Debendra Majhi were acquitted of all the charges.

Appellants Santosh Kumar Das, Manatu @ Dayanidhi
Barik, Sisir Choudhury, Rohit Barik and Rudra Prasad Das have
preferred the criminal appeals assailing their conviction and sentence
whereas in G.A. No. 29 of 2001, State has assailed acquittal of
respondents Ratan Kumar Agarwal, Sisir Choudhury and Santosh
Kumar Das of the charge under Sections 302 read with 149 I.P.C. and
acquittal of Tulu @ Tulasi Prasad Das and Debe @ Debendra Majhji of
all the charges.

3. Prosecution case is as follows:

Accused persons and deceased-Kaushik Singal belong to
occurrence village Ladugaon. Occurrence took place at about 9.00
P.M. on 17.7.1996, the day of Rathayatra, i.e., Car Festival.

Prior to the Rathayatra there was difference of opinion
among the villagers as regards the place at which Deities would be
kept between the period from Car Festival and return Car Festival.
Villagers wanted that Deities would be kept in the house of one Paban
Agarwala whereas accused persons Ratan, Sisir and Santosh opposed
such decision.

Occurrence started when injured Ramesh Ku. Agarwala
(P.W.9) was returning from his rice mill along with informant Jaya
Kiran Agarwala (P.W.1). Accused persons Sisir and Ratan approached
4

them from opposite side. As soon as they reached near the house of
one Amar Sing Agarwala, accused Sisir all of a sudden dealt tangi
blow on P.W.9’s chest. When accused Ratan attempted to deal blow
by means of tangi on P.W.9’s head, he caught hold of his hand in
order to ward off the blow. In that process accused Ratan fell down on
the ground. P.W.9 left the place and ran towards his house. P.W.1
snatched away the tangi which accused Ratan was holding.

Hearing hulla, the deceased, who was aged about 15 to 16
years, as well as Rakesh Sharma (P.W.2), Padmasen Agarwala (P.W.5)
and some co-villagers came to the spot. Seeing them accused persons
Ratan and Sisir raised alarm exhorting co-accused persons to come
forward in order to commit murder of P.W.9’s men by saying
“RAMESH RA LOKA KU MURDER KARMA ASHA”. Co-accused
persons Tulasi, Rudra, Debe, Manatu, Rohit and Santosh came to the
spot being armed with tangis and attacked the deceased. Accused
Rudra dealt a tangi blow on deceased’s head whereas accused persons
Manatu and Rohit dealt tangi blows on deceased’s both hands.
Deceased sustained injuries, fell down and died at the spot.

P.W.5 made an attempt to come to the rescue of the
deceased. However, accused persons Rohit and Santosh dealt tangi
blows on his head and hands. P.W.2 also sustained injuries due to
assault. However, P.W.2 snatched away the tangi which accused
Deba was holding.

Occurrence was visible due to availability of electric light
at the spot.

After the occurrence P.W.1 and other injured persons
started for the hospital for treatment in a truck. However, accused
persons being armed with tangis and lathis blocked their way. They
had to go to the house of retired pharmacist in the village for availing
first aid.

5

P.W.1 had to take a round about way to Koksora P.S.
where he lodged First Informant Report Ext.1 before the Officer-In-
Charge (P.W.16) at about 11.00 P.M. P.W.16 registered the case and
took up investigation.

P.W.6 visited the spot in the night of occurrence. In course
of investigation, dead body of the deceased was subjected to inquest
and post-mortem examination. Seizure of tangis and other articles
was effected. Witnesses were examined. On 29.7.1996 the Circle
Inspector of Police, Dharmagarh (P.W.17) took charge of the
investigation. On completion of investigation, charge-sheet for alleged
commission of offences under Sections 147, 148, 324, 307, 302/149
of the I.P.C. was submitted.

4. On consideration of materials on record, charge was
framed against all the accused persons under Sections 147, 148, 324
read with 149, 307 read with 149, and 302 read with 149 of the I.P.C.
In addition, charge under Sections 302 read with 34 of the I.P.C. was
framed against accused persons Rudra, Rohit and Manatu @
Dayanidhi, charge under Sections 307 read with 34 of the I.P.C. was
framed against accused persons Rohit and Santosh; charge under
Section 307 of the I.P.C. was framed against accused Sisir; and
charge under Section 324 of the I.P.C. was framed against accused
Ratan.

5. Defence plea is one of complete denial.

6. In order to substantiate the charge, prosecution examined
seventeen witnesses. P.Ws.1, 2, 5, 9, 16 and 17 have already been
introduced. Out of them, P.Ws.1, 2, 5 and 9 are injured eye witnesses.
P.Ws.3 Bajarang Agarwala and 6 Rama Abatar Agarwala are seizure
witnesses. P.W.4 Dinabandhu Agarwala is a witness to inquest..
P.W.7 Dr.Baishnab Charan Sahu medically examined P.W.5. P.W.13
Dr. Sugyani Satapathy conducted post-mortem examination over the
6

dead body of the deceased as well as medically examined P.Ws.1, 2, 9
and one Chandanlal Sharma. Other witnesses are police personnel. Of
them, P.W.8 Havildar Baibasuta Naik accompanied the dead
body to the hospital and was a witnes to seizure of wearing apparels
of the deceased. P.Ws. 10 Santosh Kumar Nayak, 11 Y. Jagannath
Rao, 12 Arun Kumar Jena, 14 Ramachandra Behera and 15 Kishore
Kumar Patra arrested some of the accused persons on the strength of
requisitions received from Investigating Officers. P.W.14 appears to
have seized a tangi on production of accused Rudra. Prosecution also
relied upon documents marked exhibits. 1 to 42 and material exhibits
M.O.I to XIII.

One Dr. M. Bijaya Gopal was examined on behalf of
defence as D.W.1. Also, medical prescription Ext. A issued by D.W.1
was admitted into evidence.

7. In assailing the impugned judgment and order, following
contentions were raised by the learned counsel appearing for the
appellants:

(i) Occurrence took place during night time when it was dark.

Prosecution evidence regarding availability of any source
of light is vague and inconsistent. There was admitted
factionalism in the village. In the absence of cogent
evidence indicating that place of occurrence was not dark,
learned court below should not have accepted prosecution
evidence ascribing specific overt acts to the accused
persons towards commission of the alleged offences.

(ii) Though medical evidence available from P.W. 13 reveals
that deceased had sustained six external injuries out of
which only injury nos. (i) and (ii) were on the head, only
appellant Rudra Prasad Das was stated to have dealt a
blow on deceased’s head by means of tangi. Injury nos. (iii)
7

to (vi) were on palms, right index finger and left forearm
and were not fatal. Prosecution has not led evidence to
indicate that any of the injuries by itself was fatal. It is
evident that only injury no. (ii) i.e. incised wound on left
parietal bone with absence of a portion of parietal bone
exposing the membrane was serious. There is no evidence
indicating the authorship of injury no.(ii). In the absence
of any evidence indicating that all the accused persons
harboured any common object towards commission of the
alleged offences, all of them were acquitted of the charge
under Sections 147, 148 and 149 I.P.C. However, the
learned trial court has convicted appellants Rudra Prasad
Das, Manatu @ Dayanidhi Barik and Rohit Barik under
Section 302 with aid of Section 34 I.P.C. without any
evidence on record to indicate that the appellants had
common intention to commit murder of the deceased.
Prosecution has failed to prove which of the accused
caused fatal wound on the deceased or that all of them
had common intention to commit murder. At the worst
evidence on record indicates that the above three
appellants were guilty of causing injuries on the deceased
without any intention to commit his murder.

(iii) There is no evidence on record to conclude that appellants
Rohit Barik and Santosh Kumar Das attempted to commit
murder of any of the injured persons. Medical evidence
does not indicate that there was any attempt on the life of
any of the injured persons.

(iv) In the absence of evidence establishing motive on the part
of the appellants to commit the alleged offences, the
learned trial court should not have believed the allegation
8

that the appellants were inimical towards the deceased or
injured persons.

(v) Adverse inference ought to be drawn against the
prosecution for suppression of material witnesses
including the person stated to have sustained injuries in
course of occurrence. Partisan evidence of P.Ws. 1, 2, 5
and 9 should not have been made the basis of findings
recorded by the learned trial court.

(vi) The learned court below has failed to take note of
contradictions in the evidence of witnesses as well as
inconsistencies between ocular testimony and medical
evidence.

8. Learned counsel appearing for the State strenuously
contended that evidence of material eye witnesses informant P.W.1
and injured persons P.Ws.2, 5 and 9 corroborated by contents of the
F.I.R. Ext.1, medical evidence available from P.Ws.7 and 13 and post-
mortem examination report and injury reports prepared by them as
well as other circumstances including seizure of weapons of offence
clearly establish all the charges framed against the accused persons.
It was argued that appellants Rudra Prasad Das, Manatu @ Dayanidhi
and Rohit Barik have rightly been convicted under Sections 302 read
with 34 I.P.C. In support of the Government Appeals it was contended
that evidence on record conclusively established that all the accused
persons being armed with axes and other weapons combined together
to launch an attack on the deceased and injured persons causing
injuries on them indiscriminately. Fatal and serious injuries were
inflicted. Therefore, all the accused persons are liable to be convicted
under Sections 302 read with 34 I.P.C. as well as 307 read with 34
I.P.C.

9

9. It is not disputed that death of the deceased was
homicidal in nature. In course of post mortem examination over the
dead body of the deceased by P.W. 13, the deceased was found to
have sustained following injuries:

(i) Incised wound measuring 6″ x 1″ x ¾” over the right
parietal bone close to the vertex with
involvement of bone.

(ii) Incised wound measuring 5″ x 2 ½” x 1″ situated
obliquely from the vertex to down words over the
left parietal bone with absence of portion of parietal
bone of size 2″ diameter, the membrane was visible.

(iii) One incised wound measuring 2″ x 1 ½” x 1″ over the
dorsum of right palm obliquely situated over the
first metacarpal bone with inverted clean edges.

(iv) One lacerated wound over the dorsum of right index
finger measuring 1″ x ½” x with cut off terminal
phalanx.

(v) Incised wound with clean edges over the middle of left
palm measuring 2″ x2″ x ¾” with cut off first, second
and 3rd metacarpal bones.

(vi) One incised wound over the dorsum left forearm 1″

above the wrist joint obliquely placed measuring 3″ x
3/2″ x 2″ with clean edges, with the complete cut off
shaft of radius and ulna. Only skin was intact ventral
aspect.

In answer to query made by the I.O. P.W. 13 opined under
report Ext.23 that all the six injuries could combinedly cause death of
a person in ordinary course of nature and that injury nos. (i), (ii), (iii)
and (vi) alone could cause death of a person. The injuries were caused
by sharp cutting weapon like tangi M.O. I.

10. Injured-informant P.W. 1 was found by P.W. 13 to have
sustained the following injuries:

(i) One incised wound over the dorsum of first inter
phalangial joint of index finger of right hand.

10

(ii) Incised wound over dorsum of first inter-phalangial
joint of middle finger of right hand.

(iii) One bruise measuring 3″ x 1″ over the middle of
right buttock.

P.W. 13 testified that injury nos. (i) and (ii) were possible if
the injured snatched the tangi like M.O. I. from hand of the assailant
and the sharp portion of the tangi came in contact on that part of the
body.

11. P.W. 13 also examined injured P.W. 2 and found a simple
injury on the left calf which could have been caused by sharp cutting
weapon.

12. On medical examination of the injured P.W. 9 by P.W. 13,
a simple injury on the left side of chest caused by sharp instrument
was found.

13. P.W. 13 also appears to have examined one Chandanlal
Sharma who has not been examined by the prosecution and to have
found a simple injury over medial line of left eyebrow which might
have been caused by sharp cutting weapon

14. Injured P.W. 5 was examined by P.W. 7 and was found to
have sustained following injuries:

(i) Lacerated wound situated over the right occipito
parietal region measuring 3 ½” x ½” x ½”.

(ii) Lacerated wound situated just in front of injury no.(i)
measuring 1″ x ½” x ½”.

(iii) Incised wound eleptical in shape clean cut margin
over the tempero parietal region of the skull on the left
side measuring 2″ x ½” x ½”.

(iv) Incised wound clean cut margin on the left side of the
zygomatic bone measuring 2″ x ½” x ½”.

(v) Deep incised wound over right forearm 2″ above the
wrist cutting muscle, fascia, skin and ulna bone
with fracture of radius, causing deformity and loss of
function.

                                         11

             (vi)    Multiple incised wounds out of which two were
                           situated over the right outer aspect of little
finger                            measuring ¼" x ½" x ½".

(vii) Bruises on the left side of forehead and eye brow
measuring 2″ x ½” x ½”.

According to P.W. 7 injury nos. (iii), (iv), (v), and (vi) might
have been caused by sharp cutting weapon like tangi and other
injuries might have been caused by hard and blunt weapon like lathi
or torch light. It does not appear from the evidence of P.W. 7 that any
of the injuries except injury no. (v) was grievous in nature. However,
in course of cross-examination P.W. 7 testified that all the injuries on
the head were simple in nature excepting injury no. (v) on the forearm
and that he had given his opinion that injury no. (v) was simple one.

15. Admittedly, P.Ws. 1, 2, 5 and 9 are the four material
witnesses examined by the prosecution. Informant P.W.1 testified that
there was difference of opinion among the villagers regarding place in
which Deities were to be kept during the period from Car Festival to
return Car Festival. He deposed that villagers wanted the Deities to
be kept in the house of one Paban Agrawala instead of the place in
which the Deities were kept earlier. However, appellants Ratan,
Santosh and Sisir objected to such decision in the meeting held on
16.7.1996.

P.W.1 alleged that occurrence took place at about 9.00
P.M. on 17.7.1996 when he alongwith P.W.9 were returning home
from P.W.9’s mill. When they reached in front of house of one
Amarsingh Agrawala they found accused persons Sisir and Ratan
proceeding from the opposite direction. All of a sudden, appellant
Sisir dealt tangi blow on P.W.9’s left side chest causing severe
bleeding injury. Accused Ratan raised his tangi in order to assault
P.W.9 on his head and P.W.9 caught hold of Ratan’s hands to ward off
blow as a result of which Ratan fell down on the ground. It was
12

asserted by P.W.1 that he snatched away the tangi M.O.I from
accused Ratan’s hands in course of which he sustained injuries on
his fingers of right hand and buttock.

Hearing hulla deceased arrived there being followed by
P.W.2 and P.W.5 and others. At that time acccused Ratan and
appellant Sisir loudly asked to join them to kill the persons belonging
to P.W.9’s group (ASO RAMESH RO LOKAKI MURDER KARMA). At
that time appellants Rudra, Manatu, Rohit and Santosh as well as co-
accused Tulu @ Tulasi and Debe @ Debendra arrived there. After their
arrival at the spot appellant Rudra attacked the deceased by means of
tangi and gave a blow on deceased’s head. Appellants Rohit and
Manatu also dealt tangi blows on both the hands of the deceased.
When P.W.5 intervened in order to rescue the deceased, he was
assaulted by appellant Rohit on his head by means of the handle of a
tangi and by appellant Santosh on his head by means of a tangi. A
tangi blow was also dealt on P.W.2’s leg.

P.W.1 asserted that seeing the blood and when people
started coming to the spot, he returned home with the tangi M.O.I.

It was further asserted by P.W.1 that at the time of
occurrence the light of nearby houses were burning for which he was
able to see the occurrence clearly.

He proceeded on a motorcycle to Koksara police station
on another route and not on the usual way which was blocked by the
accused persons, scribed F.I.R. Ext.1 and handed it over to P.W.16.
P.W.16 examined him and proceeded to the spot. Next morning P.W.1
produced tangi M.O.I before P.W.16 upon which it was seized under
seizure list Ext.2.

Evidence of P.W.1 has not been discredited in any manner
in course of cross-examination. It appears that in his cross-
examination P.W.1 deposed that the deceased was aged about 14 to
13

15 years by the time of his death and that he was not concerned with
the dispute regarding the place in which Deities were to be kept.

16. It appears from the F.I.R. Ext.1 and also it is in the
evidence of P.W.16 that F.I.R. was received and registered at 11.00
P.M. on the date of occurrence. It is alleged in the F.I.R. that though
Deities were kept in earlier years in the house of one Mura
Dandasena, villagers decided during the year of occurrence that
Deities would be kept in the house of one Paban Agrawala during the
period from Car Festival to return Car Festival. However, decision of
the villagers was opposed by appellants Ratan, Sisir and Santosh.
P.W.9 happens to be one of the prominent gentlemen of the village.
After the Car Festival when P.Ws. 1 and 9 were returning from the
side of P.W.9’s mill, appellant Sisir and accused Ratan attacked in
order to kill P.W.9. Appellant Sisir dealt tangi blow on P.W.9’s chest
whereas accused Ratan raised tangi in order to assault on P.W.9’s
head. However, P.W.9 caught hold of Ratan’s hand. In the process
Ratan fell down P.W.9 ran towards his house. P.W.1 snatched away
the tangi which accused Ratan was holding. Hearing noise deceased
as well as P.W.2, P.W.5, Lalit Sharma, Chandan Sharma, Amarsingh
Agrawala and Durga Prasad Agrawala arrived at the spot. At that
time Ratan and Sisir shouted others to come in order to kill the
persons belonging to P.W.9’s group upon which appellants Rudra,
Manatu, Rohit and Santosh as well as co-accused Tulasi and Debe
came to the spot with tangis and launched an attack. Appellant Rudra
dealt tangi blow on deceased’s head whereas appellants Manatu and
Rohit dealt tangi blows on deceased’s hands as a result of which
deceased sustained injuries and died at the spot. When P.W.5 made
an attempt to intervene in order to rescue the deceased, appellants
Rohit and Santosh assaulted him by means of tangis on his head and
hands causing serious injuries. P.W.2 also sustained injuries when
14

he tried to rescue the deceased. It has also been stated in the F.I.R.
that the informant could see the entire occurrence as there was
electric light. Thus, evidence of P.W.1 is materially corroborated
by the contents of F.I.R. lodged soon after the occurrence. Medical
evidence available from the evidence of P.W.13 adverted to above is
also consistent with the evidence of P.W.1.

17. Injured P.W.9 also deposed regarding objection by
appellants Ratan, Sisir and Santosh to the decision of the villagers to
keep the Deities in the house of Paban Agrawala. He testifieed that
the occurrence took place on the road when he alongwith P.W.1 was
returning to their respective houses from his rice mill at about 9.00
P.M. When they reached near the house of Amar Agrawala P.W. 9
found appellant Sisir and accused Ratan coming from the opposite
direction. All on a sudden, appellant Sisir dealt tangi blow on his left
side chest as a result of which he sustained bleeding injury. In the
said process accused Ratan was trying to deal a tangi blow on his
head but he caught hold of Ratan’s right hand in order to ward off the
blow. Accused Ratan fell down on the ground. P.W.9 stated to have
gone to his house out of fear. Thus, evidence of P.W.9 is limited to
that part of the occurrence which took place prior to arrival of
deceased and other co-villagers as well as other accused persons.
There is nothing in the cross-examination of P.W.9 to find any
infirmity in his allegations relating to part played by appellant Sisir in
inflicting injury on his chest. As has been stated earlier, in course of
medical examination, P.W.9 was found to have sustained simple
injury on his left side chest caused by sharp instrument. P.W.9 denied
the suggestion made in course of cross-examination that he used to
vehemently insist that Deities would be kept in the house of Paban
Agrawala.

15

18. P.W.2 deposed to have reached the spot alongwith
Chandan Sharma after hearing hulla from the side of the house of
Amarsingh Agrawala. He categorically testified that at that
time there was electricity in the village and the light from the nearby
houses was burning for which there was light on the road. He found
P.W.1 standing near the house of Amarsingh, accused Ratan
assaulting the deceased by means of fist blows whereas other accused
persons attacking the deceased by raising tangis which they were
holding. It was specifically alleged by him that appellant Rudra dealt a
tangi blow on the deceased’s head whereas appellants Rohit and
Manatu dealt tangi blows on deceased’s hands. He vaguely alleged
that accused Ratan was assaulting the deceased by fist blows which
assertion does not find support from any other witness. After
receiving the blows deceased fell down on the ground. When P.W.5
tried to physically intervene in order to rescue the deceased, appellant
Rohit raised tangi in order to assault on his head. However, P.W.5 in
order to ward off the blow raised both his hands with the torch light
which he was holding. The tangi blow fell on the torch light and the
wooden handle of the axe came in contact with P.W.5’s head.
Appellant Santosh dealt a tangi blow on P.W.5’s right hand. P.W.5
went to the house of Amarsingh Agrawala and fell down there. P.W.2
testified to have watched the occurrence from a distance of about 5 to
6 cubits from the place of occurrence. P.W.2 further deposed that
apprehending that P.W. 5 would be further assaulted by the accused
persons he went near them. One of the accused persons dealt a tangi
blow on his left leg from behind causing bleeding injury. It was
further deposed by him that when one Chandan Sharma came close
to him in order to prevent further assault, appellant Sisir dealt tangi
blow on his left side forehead causing bleeding injury. P.W.2 snatched
away the tangi M.O.II from appellant Debe. Thereafter he and
16

Chandan Sharma entered into the house of Amarsingh. P.W.2
deposed to have seen that some other villagers were standing on the
verandah of the house of Amarsingh. At about 10.30 P.M., P.W.5
and Chandan Sharma boarded a truck in order to go to hospital for
treatment. Accused persons being armed with tangis blocked the
road. They had to return home. On his production tangi M.O.II was
seized by police next day under seizure list Ext.3. Evidence of P.W.2
to have sustained injuries on left calf caused by sharp cutting weapon
is corroborated by evidence of P.W.13. Material part of evidence of
P.W.2 also appears to be without any embellishment.

19. Injured P.W.5 stated that at about 9.00 P.M. on the date
of occurrence he was standing with the deceased on the road in front
of his house. At that time P.Ws.1 and 9 were returning from the side
of rice mill. When they reached near the house of Amarsingh
Agrawala accused Ratan and appellant Sisir attacked P.W.9. On
hearing hulla he and deceased went to the spot. At that time Ratan
and Sisir called their friends hearing which other accused persons
being armed with tangis came to the spot in a group. Out of fear
deceased started to run away. However, all the accused persons being
armed with tangis started attacking the deceased. It was testified by
P.W.5 that except accused Ratan all other accused persons were
armed with tangis. Appellant Rudra dealt tangi blow on deceased’s
head whereas appellants Rohit and Manatu dealt tangi blows on
deceased’s hands. Deceased sustained bleeding injuries and fell down
on the ground. When P.W.5 followed the deceased in order to save
him from the attack, accused persons combinedly attacked him.
Appellant Rohit dealt a tangi blow on his head and appellant Santosh
dealt a tangi blow on his right forearm. P.W.5 fell down on the ground.
When P.W.2 and Chandan came in order to rescue him they were also
assaulted by the accused persons by means of tangis. P.W.5 got up
17

and went to the old house of P.W.9. After sometime P.W.5 as well as
P.W.2 and Chandan were taken in a truck in order to go to Koksara
hospital but on the way the accused persons in a group damaged the
truck. They could not go to the hospital. They received treatment
from a Pharmacist in the village. He deposed to have received
treatment subsequently in District Headquarters Hospital,
Bhawanipatna as well as in Seven Hills Hospital at Bisakhapatnam.
Medical evidence of P.W. 7 referred to above corroborates evidence of
P.W.5 to have sustained incised and lacerated wounds as well as
bruises. There is nothing in the cross-examination of P.W.5 to
disbelieve his testimony.

20. In the very F.I.R. itself, at the earliest, it was pointed out
that the informant could see the entire occurrence as there was
electric light. In his deposition also informant P.W.1 reiterated that
he could be able to clearly see the occurrence due to availability of
light from the nearby houses. Evidence of P.W.2 reveals that he
watched the occurrence from a very close distance and there was
availability of light at the spot from nearby houses. Witnesses and co-
accused persons are co-villagers and closely known to each other.
There being nothing on record to support the contention regarding
want of sufficient light so as to make identification of the assailants
improbable, contention raised on behalf of the appellants in this
regard is without merit.

21. Though, admittedly, other villagers who witnessed the
occurrence were also present near the scene of occurrence and one
Chandanlal Sharma also sustained injuries in course of occurrence,
non-examination of Chandanlal Sharma or any other witness has no
serious impact on the prosecution case which has been unfolded by
injured eye-witnesses P.Ws. 1, 2, 5 and 9. Prosecution is required to
examine all material witnesses whose evidence is necessary for
18

unfolding of the narration on which prosecution is based. Narration
of the entire prosecution case having been unfolded by P.Ws.1,2, 5
and 9, prosecution cannot be held to be guilty of suppression of
any material witnesses. In appreciating the evidence of P.Ws.1, 2, 5
and 9 it has to be borne in mind that they are injured witnesses.

22. Evidence on record does not conclusively establish that
the eight accused persons who faced trial combindly committed the
alleged offences. No specific overt act was ascribed to some of them in
assaulting the deceased or any of the injured persons. Though
accused persons Tulu @ Tulasi Prasad Das and Debe @ Debendra
Majhi were also alleged to have come to the spot of occurrence holding
tangis on being exhorted by accused Ratan and appellant Sisir, it is
also in the evidence that not only other co-accused persons but also
many villagers including the deceased assembled at the spot hearing
commotion which took place when P.W.9 was assaulted by Ratan and
Sisir. Also, accused persons Tulu @Tulasi and Debe @ Debendra are
not alleged to have assaulted either the deceased or any of the injured
persons. P.W.5 simply testified that accused Ratan and appellant
Sisir called their friends upon which other accused persons came to
the spot. He did not depose that appellants Ratan and Sisir exhorted
co-accused persons to come to the spot in order to kill persons
belonging to P.W.9’s group. P.Ws. 2 and 9 did not testify that other
accused persons were called by accused Ratan and appellant Sisir.

23. So far as the first part of the occurrence regarding assault
on P.W.9 is concerned, admittedly no other accused person except
Ratan and Sisir were alleged to be present at the spot. No other
accused person except accused persons Rudra, Rohit and Manatu
were alleged to have assaulted the deceased by means of tangis.
Evidence on record does not indicate that all the accused persons or
19

even any five of them were laying in wait being armed with lethal
weapons with any of the common objects enumerated under Section
141 I.P.C. In such circumstances, there appears no infirmity in
the impugned judgment acquitting the accused persons of the charges
under Sections 147 and 148 of I.P.C. or not convicting the accused
persons with the aid of Section 149 I.P.C..

24. It is in the evidence that P.W.1 sustained injuries on his
palm while snatching away tangi M.O.I from accused Ratan who was
making an attempt to deal a blow on P.W.9. Evidence of injured
P.W.1 is corroborated by medical evidence. Therefore, there is also no
infirmity in holding accused Ratan guilty of commission of offence
under Section 324 I.P.C..

25. Injured P.W.5 himself deposed that appellants Rohit and
Santosh assaulted him causing severe injuries. Such evidence finds
support not only from the evidence of P.Ws. 1 and 2 but also from
medical evidence from which it is gathered that P.W.5 sustained
grievous injuries including injuries on head. There was deep incised
wound over right forearm 2″ above the wrist cutting muscle and bone
and fracture of bone resulting in deformity and loss of function.
Therefore, it has been rightly held that the prosecution has
established charge under Sections 307 read with 34 I.P.C. against
appellants Rohit and Santosh beyond reasonable doubt.

26. So far as appellant Sisir is concerned, the only specific
overt act alleged against him was that he dealt a tangi blow on P.W.9’s
left side chest. Medical evidence of P.W.13 indicates that P.W.9 was
found to have sustained a simple skin deep injury. There is no
allegation that appellant Sisir attempted to deal any other blow on
P.W.9. Therefore, in absence of any material on record, there is no
basis to sustain the finding that appellant Sisir attempted to commit
20

P.W.9’s murder and is guilty of commission offence under Section 307
I.P.C. However, in view of the overt act of assault on P.W.9, he cannot
escape the liability of commission of offence under Section 324 I.P.C.

27. So far as offence under Section 302 I.P.C. is concerned, no
other accused except appellants Rudra, Rohit and Manatu was alleged
to have assaulted the deceased. P.Ws. 1,2 and 5 alleged that
appellant Rudra dealt blow by means of tangi on deceased’s head
whereas appellant Rohit and Manatu dealt tangi blows on the hands
of the deceased. In course of post-mortem examination by P.W.13
deceased was found to have sustained two incised wounds on the
head as narrated above. Though injury no.(i) indicated involvement of
bone, obviously injury no.(ii) involving absence of portion of parietal
bone was more serious. Though P.W.13 opined that all the six injuries
could combindly cause death and that injury no.s (i), (ii), (iii) and (vi)
alone could cause death of a person, persecution could have done well
to seek opinion from P.W.13 as to whether any of the injuries could
individually cause death of the deceased. Injury no.(iii) was on the
right palm and injury no.(vi) was on the left forearm. Thus, there is no
clinching evidence to indicate that appellant Rudra was the author of
injury no.(ii). Lack of evidence regarding second blow on deceased’s
head indicates that blows were dealt on the deceased in quick
succession. In such circumstances, it is not safe to conclude that any
of the appellants Rudra, Rohit and Manatu assaulted the deceased
with intention or knowledge required to constitute offence of murder
under Section 302 I.P.C. However, it is amply established that
appellant Rudra dealt tangi blow on the deceased’s head with
intention of causing such bodily injury which was likely to cause
death and thereafter appellants Rohit and Manatu also
indiscriminately dealt tangi blows on the deceased. In such
circumstances, appellants Rudra, Rohit and Manatu are liable to be
21

convicted for commission of offence under Sections 304 Part-I read
with 34 I.P.C. instead of offence under Sections 302 read with 34
I.P.C.

28. Save and except alleging that accused persons Tulu @
Tulasi and Debe @ Debendra also came to the spot being armed with
tangis, no overt act of assault has been attributed to either of them.
Admittedly, many villagers also gathered at the spot hearing noise
after assault on P.W.9. Prosecution is found to have failed to
establish that accused persons had any common object to commit the
alleged offences. In such circumstances, there is no scope to infer
that presence of accused persons Debe and Tulu by itself was
culpable. There is no infirmity in the finding of the learned trial court
that prosecution has not been able to establish any of the charges
against said accused persons.

29. Thus, on analysis and reappraisal of the evidence on
record it is found that there is no infirmity in the impugned judgment
acquitting Tulu @ Tulasi and Debe @ Debendra of the charges and
acquitting all the accused persons of the charge under Sections 147,
148 and 149 I.P.C. Also, there is no scope to interfere with conviction
of accused Ratan under Section 324 I.P.C. and appellants Rohit and
Santosh under Sections 307 read with 34 I.P.C. However, appellant
Sisir is liable to be convicted under Section 324 I.P.C. instead of
Section 307 I.P.C. and appellants Rudra, Rohit and Manatu are liable
to be convicted for commission of offence under Sections 304-I read
with 34 I.P.C. instead of 302 read with 34 I.P.C.

30. In view of the above, while setting aside conviction of
appellants Rudra, Rohit and Manatu for commission of offence under
Section 302 I.P.C. and convicting them under Sections 304-I read
with 34 I.P.C. they are sentenced to undergo R.I. for ten years each
thereunder. Also, while setting aside conviction of appellant Sisir for
22

commission of offence under Sections 307 read with 34 I.P.C. and
convicting him under Section 324 I.P.C. he is sentenced to undergo
R.I. for one year thereunder. However, order of the learned trial court
sentencing appellants Rohit and Santosh to undergo R.I. for five years
for commission of offence under Sections 307 read with 34 I.P.C. is
confirmed. Learned trial court has sentenced accused Ratan to
undergo R.I. for the period already undergone as an under trial
prisoner for commission of offence under Section 324 I.P.C. in view of
defence evidence to the effect that he is a mentally challenged person.
We find no reason to interfere with the sentence awarded to accused
Ratan. The impugned judgment and order are modified accordingly.

31. In the result, Government Appeal filed by the State is
dismissed and Criminal Appeals filed by appellants Rudra, Manatu,
Rohit and Sisir are allowed in part to the extent indicated above.
Criminal Appeal filed by appellant Santosh is dismissed.

…………………….

B.K. Patel, J.

PRADIP MOHANTY, J.         I agree.

                                               ...........................
                                              Pradip Mohanty, J.




Orissa High Court, Cuttack,
Dated the 22nd December,2010/Aswini
 

Revana Siddappa vs Unknown on 21 December, 2010

Orissa High Court
Revana Siddappa vs Unknown on 21 December, 2010
                      HIGH COURT OF ORISSA : CUTTACK

                             CRLREV NO.1336 OF 2010

           In the matter of an application under section 401 of the Criminal
           Procedure Code, 1973.
                                          --------------


           Revana Siddappa                            ......            Petitioner

                                              -Versus-

           State of Orissa                             ......           Opp. Party


                    For Petitioner        :       M/s P.K. Nayak, H.B. Dash,
                                                      D.Nayak, S.K. Mohapatra,
                                                      R. Nayak, CH.A.K. Das &
                                                      B.K. Sethy.

                    For Opp. Party            :   Mr. R.R. Mohanty,
                                                  Additional Standing Counsel.


                                          ---------------

           PRESENT:

                 THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY.

                             Date of Judgment : 21.12.2010


I. Mahanty, J.      In the present application under Section 401 Cr.P.C.
           challenge has been made to an order dated 1.11.2010 passed in
           C.M.C. No. 214 of 2010 passed by the learned S.D.J.M., Keonjhar, by
           which order an application filed under Section 457 Cr.P.C. filed by the
           petitioner for and on behalf of Ashok Transport as its power of
           attorney holder came to be rejected, inter alia, on a finding that, while
           the Bus bearing temporary Registration No. KA-25TC-1054 involved in
                                     2



the accident and release of the vehicle sought for belongs to the TATA
Motors Limited, the power of attorney filed by the petitioner was not by
TATA Motors Limited, but by Ashok Transport, who was not the owner
of the vehicle in question.
           Mr. Nayak, learned counsel for the petitioner placed reliance
on a "Transportation Agreement" entered into by Ashok Transport
with TATA Motors Limited, interms of which the vehicle in question
was being transported from Dharward in the State of Karnataka to
RSO Kharagpur in the State of West Bengal on the basis of a Stock
Transfer Memo (Annexure-1) and while the said vehicle was
proceeding through Orissa at Keonjhar met with an accident leading
to the death of a person who was travelling on the road.
           Learned counsel for the petitioner also laysstress on various
clauses of the said "Transportation Agreement" including Clauses (i),
(k) and (n) to establish the fact that the petitioner who is the power of
attorney     holder   of   Ashok   Transport,     the      signatory   to    the
Transportation Agreement with the TATA Motors Limited was
endowed with the responsibility of transporting of the vehicle of TATA
Motors from various locations to their various dealers located
throughout     the    country.   Stress   is   laid   on    the   contents    of
paragraph-'n' of the Transportation Agreement, which is quoted
below:-
                         " If the vehicles entrusted to you for the
                  transportation are not delivered at the
                  prescribed destinations, for any reason
                  whatsoever, and you are not able to account for
                  the same, you shall be liable to compensate us,
                  without delay or demur, in respect of the
                  vehicles to undelivered and unaccounted for.
                  The said compensation shall include the value
                  of the said vehicles (i.e. the value-at which said
                  vehicle would have been sold by us to our
                  customers, had they been delivered at the
                                 3



               destination) together with interest at the rate of
               18% per annum on the value of the said
               vehicles and the interest shall be for the period
               commencing from the date on which the said
               vehicles would have normally been delivered at
               the destinations, till such date on which the
               compensations paid to us."

        A copy of the seizure list is also submitted by the learned
counsel for the petitioner in Court today. From which it appears that
the vehicle was seized from the custody of a driver who was employed
by Ashok Transport. Apart from the above, learned counsel for the
petitioner placed reliance on a judgment of the Hon'ble Supreme
Court in the case of General Insurance Council and others v. State
of Andhra Pradesh and others, reported in (2010) 6 Supreme Court
Cases   768,   wherein   the   Hon'ble   Supreme    Court   took    into
consideration various earlier judgments passed by the Hon'ble
Supreme Court and ultimately keeping in view the general public
interest directed in paragraph-14, as under:-
                        " It is a matter of common knowledge
               that as and when vehicles are seized and kept
               in various police stations, not only do they
               occupy substantial space in the police stations
               but upon being kept in open , are also prone to
               fast natural decay on account of weather
               conditions. Even a good maintained vehicle
               loses its roadworthiness if it is kept stationary
               in the police station for more than fifteen days.
               Apart from the above, it is also a matter of
               common knowledge that several valuable and
               costly parts of the said vehicle are either stolen
               or are cannibalized so that the vehicle becomes
               unworthy of being driven on road. To avoid all
               this, apart from the aforesaid directions issued
               hereby above, we direct that all the State
               Governments/Union          Territories/ Director
               General of Police shall ensure macro
               implementation of the statutory provisions and
               further direct that the activities of each and
                                  4



              every police station, especially with regard to
              disposal of the seized vehicle be taken care of
              by the Inspector General of Police of the
              division/Commissioner of Police concerned of
              the cities/Superintendent of Police concerned of
              the district concerned."
        Considering the nature of submission made and after
hearing the learned counsel for the State, I have also perused the
impugned order. Section 457(1) of the Code of Criminal Procedure,
1973 is quoted herein below:-
                       "Procedure by police upon seizure of
                property.-(1) Whenever the seizure of property
                by any police officer is reported to a Magistrate
                under the provisions of this Code, and such
                property is not produced before a Criminal
                Court during an inquiry or trial, the Magistrate
                may make such order as he thinks fit
                respecting the disposal of such property or the
                delivery of such property to the person entitled
                to the possession thereof, or if such person
                cannot be ascertained, respecting the custody
                and production of such property."

        In terms of the said provision of the Code of Criminal
Procedure, 1973, the Magistrate is authorized to direct delivery of the
property seized to "the person entitled to the possession thereof". In
the case at hand since the vehicle in question belonging to TATA
Motors Limited had been handed over to the possession of Ashok
Transport for the purpose of transporting the said vehicle to its dealer
located at Kharagpur in the State of West Bengal, there cannot be
any doubt that Ashok Transport was in lawful possession of the
vehicle in question at the time when the accident took place and the
vehicle was seized by the police authority from a driver who was
working for Ashok Transport. From the impugned order it clearly
appears that the power of attorney holder, who has filed the present
petition had field a power of attorney in his favour to move such an
                                 5



application under Section 457 Cr.P.C. by Ashok Transport and the
said power of attorney holder was the lawful attorney for prosecuting
the case on behalf of the lawful possessor of the vehicle, on date the
accident occurred, I am of the considered view that the prayer made
by the petitioner ought to be allowed in his favour by quashing the
order dated 1.11.2010 passed by the learned SDJM, Keonjhar in
CMC No. 214 of 2010 arising out of G.R. Case No. 771 of 2010 and
further direct release of the vehicle in question in favour of    the
petitioner with conditions that may be stipulated by the learned
SDJM.
        The CRLREV is accordingly disposed of.



                                              .........................
                                               I.Mahanty,J.

ORISSA HIGH COURT : CUTTACK
21st December, 2010 /AKD
6

Upendranath Dey vs Ananta Kumar Dey And Others … on 19 November, 2010

Orissa High Court
Upendranath Dey vs Ananta Kumar Dey And Others … on 19 November, 2010
                             HIGH COURT OF ORISSA: CUTTACK.

                                    W.P.(C) NO.2460 OF 2008

         In the matter of an application under Articles 226 and 227 of the
         Constitution of India.
                                    ------------
         Upendranath Dey                              .......                Petitioner.


                                    -   Versus-


         Ananta Kumar Dey and others                   .......               Opposite Parties


                For petitioner          :       M/s. Ramakanta Mohanty, D.K.
                                                   Mohanty, A.P. Bose, S.K.Mohanty,
                                                     P. Jena, D. Patnaik, S.N. Biswal
                                                      and S. Mohanty


                For Opp. Parties :                M/s. P.K. Jena, N. Panda
                                                       and D.P. Mohapatra (O.P.1)


         PRESENT:

                         THE HONOURABLE SHRI JUSTICE B.K. PATEL

—————————————————————————————-
Date of argument – 3.11.2010 :: Date of judgment – 19.11.2010

—————————————————————————————-

B.K.PATEL, J. Petitioner has assailed in this writ petition the legality of

order dated 28.1.2008 passed by learned Civil Judge, (Junior Division),

Jaleswar in Misc. Case No.3 of 2006 by which opposite party no.1’s

application under Order 9 Rule 13 of the C.P.C. was allowed and ex

parte decree passed in T.S. No.130 of 1991 by learned Munsif, Balasore

was set aside subject to payment of cost of Rs.4,5000/-.
2

2. Petitioner is the plaintiff and opposite party no.1 is the

defendant no.1 in T.S. No.130 of 1991. Petitioner has filed the suit

for correction of M.S. ROR. Petitioner’s case is that in response to

notice opposite party no.1 entered appearance through Sri B. Jena,

Advocate and took time thrice to file written statement. However, as no

written statement was filed by opposite party no.1, ex parte decree was

passed on 2.11.1992 in favour of the petitioner. Pursuant to the

decree petitioner filed mutation cases bearing Misc. Case Nos.47 and

48 of 1995 in which also opposite party no.1 did not appear in spite of

service of notice and M.S. ROR was corrected. Long after thirteen

years, opposite party no.1 filed application under Order 9 Rule 13 of

the C.P.C. accompanied by application under Section 5 of the

Limitation Act. Petitioner filed objections against both the applications.

In support of opposite party no.1’s assertions P.W.1 was examined and

documents marked Exts.1 to 3 were admitted into evidence. It is

averred in the writ petition that without affording any opportunity to

the petitioner to cross-examine P.W.1, the impugned order was passed

erroneously holding that summons was not served on the opposite

party no.1 in the suit.

3. It was contended by the learned counsel for the petitioner

that order sheet in T.S. No.130 of 1991 reveals that opposite party no.1

had entered appearance through Sri B. Jena, Advocate on 4.5.1992

and filed petitions for time to file written statement and for setting
3

aside the order setting him ex parte. On 24.6.1992 also opposite party

no.1 had filed petition for time to file written statement which

was allowed subject to payment of cost of Rs.10/-. However, opposite

party no.1 neither paid cost nor took any step on 6.7.1992 and

28.7.1992 for which application dated 4.5.1992 to set aside the order

setting opposite party no.1 ex parte was rejected. Notice was issued to

opposite party no.1 in mutation cases also, but he did not participate

in the proceeding before the Tahasildar. After long lapse of thirteen

years, opposite party no.1 filed application under Order 9 Rule 13 of

the C.P.C. on the ground that the petitioner had not supplied correct

address of opposite party no.1 and committed fraud on the court in

order to obtain ex parte decree and that opposite party no.1 had no

knowledge regarding the ex parte decree till he was told regarding the

same by his lawyer appearing in C.S. No.65 of 2003-1. Learned court

below passed the impugned order without considering petitioner’s

objections and without giving him opportunity to cross-examine

opposite party no.1’s son who was examined as P.W.1. It was

strenuously contended that learned court below had no basis to come

to the finding that the opposite party no.1 had no knowledge regarding

the ex parte decree till filing of application under Order 9 Rule 13 of the

C.P.C. in the year 2006.

4. It was contended on behalf of learned counsel for the

opposite party no.1 that petitioner practised fraud on the court to
4

obtain ex parte decree dated 2.11.1992. No notice was ever served on

opposite party no.1 in the suit. He did not execute any Vakalatnama

in favour of Sri B. Jena, Advocate. Opposite party no.1 could know

about the ex parte decree from his lawyer appearing in C.S. No.65 of

2003-1 in which copy of the ex parte decree was filed by the petitioner

on 30.11.2005. Evidence was adduced on behalf of opposite party no.1

to substantiate such assertions. P.W.1 was cross-examined on behalf of

the petitioner. No evidence was adduced on behalf of the petitioner to

substantiate the claim that notice was issued to opposite party no.1 or

that opposite party no.1 entered appearance through any counsel.

Learned court below has passed the impugned order upon perusal of

the case record which indicates that service of summons on opposite

party no.1 was held by order dated 22.2.1992 to be sufficient after

‘refusal postal service’. S.R. and P.A. of opposite party no.1 indicating

due service of notice was not available in the case record. Learned

court below has awarded exemplary cost of Rs.4,500/- to take care of

inconvenience caused to the petitioner. In such circumstances, there is

no reason to interfere with the finding of fact regarding non-service of

summons in exercise of writ jurisdiction.

5. Non-service of summons against a defendant is one of the

two statutory grounds under Order 9 Rule 13 C.P.C. for setting aside a

decree passed against him ex parte. Provision, inter alia, mandates that

in any case in which a decree is passed ex parte against a defendant, he
5

may apply to the Court by which the decree was passed for an order to

set it aside; and if he satisfies the court that the summons was not duly

served, court shall make an order setting aside the decree as against

him upon such terms as to costs.

It has been held in Rabindra Pras Kamilla -v- Abhaya Prasad

Kamilla: (1987) CLT (supp.) 428 that Order 9 Rule 13 C.P.C. is a

beneficial legislation for the benefit of the defendant against whom

ex parte decree has been passed. Subject to the specific preconditions,

the same is to be interpreted liberally in favour of the defendant

applying for setting aside the ex parte decree. In Prafulla Chadra

Deo -v- Satyanarayan Chandra Deo and another : 1992(I) OLR 277

and Bishnu Charan Malla -v- Sanskarsan Mohapatra alias Behera

and others: 2003(I) OLR 61 it has been observed that even if a

defendant might have knowledge of the suit, yet he is within his right

to expect an effective service of summons on him calling upon him to

appear in court and unless such service is made, he may avoid the

Court. In Lundu Roudia -v- Dusman Roudia: 1996(II)OLR 355 it has

been held that while dealing with application under Order 9 Rule 13

C.P.C. court should see that the rights of the parties are determined on

contest. Approach should not be over technical and contrary to liberal

and should be justice oriented.

6. Case of the present opposite party no.1 is that no

summons was served on him in the suit. He came to know regarding
6

the ex parte decree when copy of the same was filed in court by the

petitioner on 30.11.2005 in I.A. No.3 of 2004 arising of Civil Suit

No.65 of 2003-I. Application under Order 9 Rule 13 C.P.C. was filed

on 16.1.2006 along the application under section 5 of the Limitation

Act and a medical certificate indicating opposite party no.1’s illness

from 1.11.2005 to 13.1.2006. Petitioner filed objections to the

petitions filed by the opposite party no.1. Opposite party no.1 had

executed power of attorney in favour of his son who was examined as

P.W.1. In his affidavit evidence P.W.1 reiterated the assertions made

in the applications under Order 9 Rule 13 C.P.C. and section 5 of the

Limitation Act. His evidence regarding illness found corroboration

from the medical certificate Ext.3. Certified copy of the order in

I.A.No.3 of 2004 was also filed at Ext.2. Though order sheets in

T.S.No.130 of 1991 indicates that the opposite party no.1 appeared

through Mr. B.Jena, Advocate and filed petitions for time on 4.5.1992

and 26.6.1992, no suggestion whatsoever was given to P.W.1 in course

of his cross-examination regarding opposite party no.1’s appearance in

court. P.W.1 appears to have reiterated in course of his cross-

examination that no notice was served on his father. Moreover, no oral

or documentary evidence was adduced on behalf of the petitioner to

indicate service of summons on opposite party no.1. Even the

Vakalatnama alleged to have been executed by P.W.1 in favour of Sri

B.Jena, Advocate was not confronted to P.W.1. On examination of the
7

case record learned court below does not appear to have found the S.R.

and P.A. of opposite party no.1. Finding of the learned court below

regarding non-service of summons having been based on the basis of

such materials on record, in view of the statutory provisions under

Order 9 Rule 13 C.P.C. and legal principles indicated above, there

appears no ground to interfere with the impugned order.

Therefore, the writ petition is dismissed.

…………………..

B.K. Patel, J.

Orissa High Court, Cuttack,
The 18th Nov., 2010/Jhankar

Mirza Asaf Alli Baig & Another vs State Of Orissa on 4 November, 2010

Orissa High Court
Mirza Asaf Alli Baig & Another vs State Of Orissa on 4 November, 2010
                           HIGH COURT OF ORISSA : CUTTACK

                                CRIMINAL APPEAL No.564 of 2006
                                             AND
                                CRIMINAL APPEAL NO.38 of 2007

            From the judgment and order dated 22.12.2006 passed by Shri
            B.N.Das, Additional District and Sessions Judge, Nayagarh in
            S.T.Nos.174/101/107 of 2005/2004 S.T.Case Nos.175/102/204 of
            2005/2004 and S.T.Case Nos.176/8/26 of 2005.

            IN CRLA NO.564 OF 2006
            Mirza Asaf Alli Baig & another                      ..........           Appellants

                                                 Versus.
            State of Orissa                                      ...........         Respondent

                           For Appellants        : M/s. R.K.Nayak, P.K.Moharaj,
                                                        R.P.Roy, S.K.Das and
                                                        S.P.Das

                           For Respondent        :       Government Advocate.


            IN CRLA NO.38 OF 2007
            Parsuram Bihari                                     ..........           Appellant

                                                 Versus.
            State of Orissa                                     ...........          Respondent

                           For Appellant         : M/s. R.K.Nayak, S.K.Dash,
                                                        S.P.Dash, P.C.Mohanty,
                                                        R.P.Roy and C.R.Kanungo.

                           For Respondent        :       Government Advocate.

            PRESENT
                              THE HON'BLE SHRI JUSTICE A.S. NAIDU
                                            AND
                              THE HON'BLE SHRI JUSTICE B.K.NAYAK
            --------------------------------------------------------------------------------------

Date of hearing : 09.10.2009 : Date of judgment: 10.2009

B.K.NAYAK, J. The appellants in both the appeals have challenged the judgment

and order dated 22.12.2006 passed by the Additional Sessions Judge,

Nayagarh in S.T.Case Nos.174/101/107 of 2005/2004, S.T.Case
2

Nos.175/102/204 of 2005/2004 and S.T.Case Nos.176/8/26 of 2005

convicting the appellants under Sections 302/120-B of the Indian Penal

Code and sentencing them to undergo R.I. for life and to pay a fine of

Rs.5,000/-, in default, to undergo R.I. for further period of six months.

2. The appellants along with four other accused persons, namely,

Mallick Soleman, Sk.Salim @ Pinku, Babuni @ Subrat Patra and Banua @

Lalbihari Das faced their trial being charged under Sections 452/120-B,

120-B, 302/120-B of the Indian Penal Code for allegedly committing the

murder of Dr.Abid Alli Baig in pursuance of a conspiracy hatched by them

by trespassing into the house of the deceased.

3. The totality of the prosecution case that came to light during the

course of investigation which was launched on the basis of the F.I.R. lodged

by one Nakula Das (P.W.6) is to the following effect :

The deceased Dr.Abid Alli Baig had a Clinic close to his paternal

house at Nayagarh where the informant was working as a Compounder. On

6.8.2002 at about 8.00 A.M., the informant came to the clinic in connection

with his duty and for opening of the Clinic he went into the house of the

deceased to collect the keys. On arrival, he found the front door and the

bedroom door of the house of the deceased lying open, so also the Almirah

and Box of the deceased kept inside the house. Some articles were lying

scattered inside the house. The informant called out the deceased, but he

failed to get any response. When he was about to come out of the house, he

discovered some blood on the wall of the drawing room of the house. On

suspicion he entered into the drawing room and found the doctor (deceased)
3

lying dead there in a pool of blood. The informant, thereafter, immediately

lodged the report against unknown culprits, on the basis of which the

Inspector-in-charge, Nayagarh Police station (P.W.49) registered P.S.Case

No.166 of 2002 and took up investigation.

4. During the course of investigation, P.W.49 proceeded to the spot

and found the dead body of the deceased and household articles were lying

scattered. He prepared spot map and took Video photographs, issued

requisition for Scientific Team and sniffer dog. On their arrival, they took

photographs of the spot and discovered some finger prints from the calling

bell switch on the outer verandah of the house, glass cover of the cup board

and liver of the lock of the drawing room and thereafter developed the finger

prints and took photographs. The Scientific Team also collected sample

blood from the spot and prepared a report vide Ext.4. The I.O. held inquest

over the dead body of the deceased in presence of witnesses and thereafter

sent it for post mortem examination. From the spot, he collected and seized

sample filter paper, broken white bottle soaked with blood and a book under

the title “Miracle of M.S.M.Natural Solution forpain”. The I.O. also seized

from the house of the deceased one SBBL gun (M.O.V) along with some

ammunitions, one Auto Pistol (M.O.VI), Air Gun (M.O.VII) and Revolver

(M.O.VIII). After the post mortem report, on the following day the I.O. seized

the wearing apparels and one Tabiz belonging to the deceased. On

01.01.2003, the I.O., Shri B.K. Raju (P.W.49) made over charge of

investigation to the Shri M.K. Subudhi, Inspector of C.I.D., (Crime Branch).

On 21.1.2003, Sri Uttam Kumar Singh, another Inspector of police, CID
4

(C.B.) (P.W.50) took over charge of investigation from Sri M.K.Subudhi.

During the course of investigation, P.W.50 examined the wife and sisters of

the deceased, re-examined other witnesses and recorded their statements.

On 04.02.2003, he visited the spot along with Director, State Forensic

Science Laboratory and seized some blood stains available on the door

screen of the drawing room. On 07.02.2003, he arrested all the accused

persons except accused-Mallick Soleman, collected their finger prints and

sent the same to Finger print Bureau. On completion of investigation, the

I.O. submitted charge-sheet making out a case that accused-Mirza Asaf Alli

Baig who is the brother of the deceased and his son accused Mirza Aslam

Alli Baig @ Amir had long standing enmity with the deceased over their

paternal properties for which they had threatened him of dire consequences,

and that accused-Parsuram Bihari had also enmity with the deceased, since

the latter in his capacity as the President of K.C. Club, Nayagarh had taken

over possession of a patch of land and constructed a boundary wall thereon

extending the area of the Club on its western side which was being objected

to by accused-Parsuram Bihari, who had also threatened the deceased to do

away with his life. It is further made out by the prosecution that these three

accused persons joined together and hired accused- Mallick Soleman,

Sk.Salim @ Pinku, Babuni @ Subrat Patra and Banua @ Lalbihari Das as

contract killers and conspired with them to kill the deceased and resultantly

in pursuance of such conspiracy these four accused persons caused murder

of the deceased inside his house in the night of 5/6.8.2008.
5

5. The defence plea is a complete denial of the involvement of the

accused persons in the alleged crime. It was further stated by the accused

persons that they were falsely implicated.

6. In order to prove its case, the prosecution examined as many as 52

witnesses. No defence evidence was led by the accused persons. Of the

prosecution witnesses, P.W.6 is the informant, P.Ws.3, 4, 5, 9, 11, 16, 20,

24, 38 and 39 are some members of K.C. Club, Nayagarh. P.Ws.22, 25 and

30 are the sisters and P.W.44 is the widow of the deceased. P.Ws.21 and 52

are two Scientific Officers. P.W.31 is the doctor of District Headquarter

Hospital, Nayagarh, who conducted post mortem on the dead body of the

deceased on police requisition. P.W.42 is the Executive Officer, Nayagarh

N.A.C. P.Ws.43, 48 and 34 are respectively Tahasildar., R.I. and Junior

Clerk of Revenue Department, P.Ws. 28, 29, 33, 35, 36 and 37 are the

seizure witnesses. P.Ws.8, 10, 15 and 32 are Potato godown owners. P.W.27

is the Manager of Bhuasuni temple, Ogalapada. P.Ws. 40 and 41 are the Toll

Gate Employees. P.Ws.12 and 13 are two independent witnesses. P.Ws.1, 2,

26, 46 and 47 are some residents of Nayagarh Town. P.Ws.18 and 45 are

two police personnel who had accompanied the dead body of the deceased

for post mortem examination. P.W.19 is the Video Recorder. P.Ws.14 and 17

are co-villagers of accused-Banua. P.W.51 was the S.I. of Police, Nayagarh

Police Station on the date of occurrence. P.Ws. 49 and 50 are two

Investigating Officers.

7. On consideration of the evidence on record, the trial court has

come to the following conclusions ;

6

(i) there is no cogent and consistent evidence on record
regarding implication of accused persons, namely,
Mallick Solemn, Sk.Salim @ Pinku, Babuni @ Subrat
Patra and Banua @ Lalbihari Das with the crime, and
that they have agreed among themselves to commit the
murder of the deceased;

(ii) there is no evidence on record that the accused persons,
namely, Asaf, Aslam and Parsuram have committed
house trespass in the night of occurrence in pursuance of
the criminal conspiracy;

(iii) the prosecution has successfully brought home the
charge under Sections 302/120-B of the I.P.C. against
the accused persons namely, Asaf, Aslam and Parsuram;

With the aforesaid findings the trial court acquitted accused

persons, namely, Mallick Solemn, Sk.Salim @ Pinku, Babuni @ Subrat

Patra and Banua @ Lalbihari Das of all the charges. The trial court however,

convicted the present appellants under Sections 302/120-B of the I.P.C.

8. In assailing the impugned order of conviction and sentence, the learned

counsel for the appellants submitted that in absence of any direct evidence

regarding the murder of the deceased, the whole prosecution case rests on

circumstantial evidence and that the only circumstance for which there is

some shaky prosecution evidence being the motive of the appellants to do

away with the deceased out of revenge would not by itself be sufficient to

convict them for the offence of murder. He also submits that there is no

acceptable evidence to prove the motive of the appellants to cause murder of

the deceased. His further contention is that the trial court having disbelieved

the prosecution story about the conspiracy that the four accused persons,
7

namely, Mallick Solemn, Sk.Salim @ Pinku, Babuni @ Subrat Patra and

Banua @ Lalbihari Das committed the murder of the deceased in pursuance

of a conspiracy entered into by all the accused persons, it could not have

convicted the appellants under Sections 302/120-B of the I.P.C.

9. The learned counsel appearing for the State submitted that the impugned

order of conviction and sentence is well founded and needs no interference.

10. It is submitted at the Bar that the impugned order passed by the trial

court in so far as it relates to acquittal of the four accused persons, namely,

Mallick Soleman, Sk.Salim @ Pinku, Babuni @ Subrat Patra and Banua @

Lalbihari Das has not been challenged.

11. There is no doubt that the deceased died a homicidal death, which is

established from the medical evidence. Evidence of the doctor (P.W.31), who

conducted post mortem examination over the dead body of the deceased,

and the post mortem report (Ext.10) reveal that the deceased sustained one

incised injury of size 8″ x 2″ x ½” x 1″ extending from the upper most part

of the neck 1″ lateral to midline on left side obliquely upwards the right ear

lobule and another incised wound of 4 ½” x ½” x 1/4″ over the left side

cheek on the mandible and some scratch marks over right side base of the

neck and upper chest. The incised wound on the neck had completely cut

the carotid artery and jagular veins causing copious haemorrhage that

brought about the death of the deceased.

12. The question that falls for determination is as to whether in pursuance of

a conspiracy entered into between the appellants and the four acquitted

accused persons, the latter committed the murder of the deceased so that
8

the appellants can be held guilty under Sections 302/120-B of the I.P.C.

Admittedly, there is no direct evidence with regard to murder of the

deceased. It appears from the evidence of the I.Os that during investigation

with the assistance of the Scientific Team, P.W.49 collected the finger prints

from the calling bell switch on the outer verandah of the house of the

deceased, from the glass cover of cup board and lever of the lock of the

drawing room which were developed and photographed, and that after arrest

of the accused persons by P.W.50, their finger prints were obtained and sent

to the Finger Prints Bureau for matching. P.W.50 has clearly admitted that

finger prints of the accused persons did not match with the prints collected

from the house of the deceased and, therefore, the finger prints report did

not connect the accused persons with the crime. In absence of any

semblance of evidence that the four acquitted accused persons in fact

committed the murder of the deceased or that they conspired with the

appellants to cause such murder, the trial court has acquitted them of all

charges. However, citing negligence and laches on the part of the first I.O.

(P.W.49), the court below has observed that for wrong and laches committed

by the Investigating Officer criminal justice should not suffer, and

accordingly convicted the appellants.

13. The whole prosecution case rests on circumstantial evidence. The

‘Panchsheel’ of proof of a case based on circumstantial evidence which is

usually called five golden principles have been stated by the apex Court in

Sharad Birdhichand Sarda v. State of Maharashtra; AIR 1984 SC 1622
9

and Md.Sher Bahadur Khan v. State; (1996) 10 OCR 167;. The principles

are as follows :

(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established,
as distinguished from ‘may be’ established;
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on
any other hypothesis except that the accused is
guilty;

(3) the circumstances should be of a conclusive
nature and tendency;

(4) they should exclude every possible hypothesis
except the one to be proved; and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.

14. In the instant case, the prosecution attributed motive to the appellants

for causing the death of the deceased. While appellant -Mirza Aslam Alli and

his son are said to have long standing enmity with the deceased over the

paternal property for which they had been threatening the deceased with

dire consequence, accused-Parsuram Bihari was allegedly having enmity

with the deceased since the latter as the President of K.C. Club, Nayagarh,

had taken over possession of a patch of land and constructed western side

boundary wall thereon which was being objected to by Parsuram Bihari and,

therefore, the deceased was being threatened by him. The trial court in
10

paragraph-12 of the judgment clearly discussed as to how the witnesses

examined by the prosecution to prove conspiracy among the accused

persons have not supported the prosecution story. There is no acceptable

evidence of any independent witness with regard to the motive of appellant-

Parsuram Bihari to do away with the life of the deceased. P.Ws. 22, 25 and

30, who are the sisters of the deceased, and P.W.44, the wife of the

deceased, were examined by the I.O. more than five months after the killing

of the deceased. With regard to the enmity between the deceased on the one

hand and his accused brother-Asaf and nephew-Amir on the other, the

evidence of the aforesaid witnesses reveal that there was quarrel and ill

feeling between them over the family properties, after their father died and

the deceased came to Nayagarh in 1987, and several civil and criminal

litigations were started between them. However, the evidence of P.W.6, who

is very much acquainted with the affairs and the relationship between the

deceased and his accused brother, reveals that at the time of the incident

they were pulling on well with each other. He has further stated that

accused-Asaf had undergone, a surgery for harnia at a Nursinghome at

Nayagarh and the deceased was looking after him. P.W.26 is a lawyer of

Nayagarh and family friend of the deceased and his brother. He has

admitted in his evidence that there was ill feeling between the deceased

and his brother and there were several litigations between them. He

negotiated for a compromise and ultimately all the cases including a

partition suit were compromised in the year 2000. In the light of such

evidence, it is hard to believe that accused-Asaf and his son had still a
11

motive to take revenge on the deceased by causing his murder.

15. Law is well settled that motive may be a circumstance to raise suspicion

against the accused, but suspicion howsoever strong it may be cannot take

the place of real proof. On the basis of such a circumstance, it is not

possible to draw an irresistible conclusion which is incompatible with the

innocence of the accused, particularly when there is no other circumstance

connecting the appellants with the crime in question.

16. There are other suspicious circumstances which remain unexplained and

raise doubts about the complicity of the appellant in the crime. First of all,

the finger prints collected from the calling bell switch on the outer verandah

of the house, glass cover of the cup board and lever of the lock of the

drawing room did not match with the finger prints of any of the accused

persons. This means that real persons who had left finger prints could not

be identified. Prosecution has failed to rule out the possibility of

involvement of those persons, who had left their finger prints. One open

condom was recovered from the bed room of the deceased on the day

following the murder during the course of investigation. Admittedly, the wife

of the deceased was not present with the deceased in the night of murder.

The prosecution has not come out with any explanation about the

availability of an open condom in the house of the deceased. The wife of the

deceased has admitted in her cross-examination that her husband was a

man of loose character and he had so many enemies. It is also in the

evidence that one Antaryami Das was inimical towards the deceased as

because the deceased had seized a truck which Antaryami had purchased
12

on loan with the guarantorship of the father of the deceased. All these

unexplained facts also raise a grave doubt about the complicity of the

appellants in the alleged offence.

17. The trial court has categorically found that conspiracy to kill the

deceased has not been proved and, therefore, acquitted other four accused

persons, who allegedly committed the murder in pursuance of the

conspiracy. In the cases of Fakhruddin v. The State of Madhya Pradesh;

AIR 1976 S.C. 1326 and Girija Shankar Misra v. State of U.P.; AIR 1993

S.C. 2618, it has been held by the Apex Court that the offence of conspiracy

cannot survive the acquittal of alleged co-conspirators. If the alleged real

murderers, namely, Mallick Soleman, Sk.Salim @ Pinku, Babuni @ Subrat

Patra and Banua @ Lalbihari Das were acquitted for want of proof of

conspiracy and murder by them pursuant to such conspiracy entered into

by them with the present appellants, the present appellants who were

alleged co-conspirators cannot be held guilty under Section 302 read with

Section 120-B of the I.P.C.

18. In the light of the discussions made above, we are of the view that the

impugned judgment of conviction and sentence of the appellants under

Sections 302/120-B of the I.P.C. cannot be sustained. We, accordingly, set

aside the said order of conviction and sentence and acquit the appellants in

both the appeals of the charges under Sections 302/120-B of the I.P.C.

Accordingly, both the appeals are allowed.

……………………….

B.K.Nayak,J.

13

A.S.Naidu, J. I agree.

………………………..

A.S.Naidu, J.

Orissa High Court, Cuttack
The     . November,2009/G.B.Samal
 

Mirza Asaf Alli Baig & Another vs State Of Orissa on 4 November, 2010

Orissa High Court
Mirza Asaf Alli Baig & Another vs State Of Orissa on 4 November, 2010
                           HIGH COURT OF ORISSA : CUTTACK

                                CRIMINAL APPEAL No.564 of 2006
                                             AND
                                CRIMINAL APPEAL NO.38 of 2007

            From the judgment and order dated 22.12.2006 passed by Shri
            B.N.Das, Additional District and Sessions Judge, Nayagarh in
            S.T.Nos.174/101/107 of 2005/2004 S.T.Case Nos.175/102/204 of
            2005/2004 and S.T.Case Nos.176/8/26 of 2005.

            IN CRLA NO.564 OF 2006
            Mirza Asaf Alli Baig & another                      ..........           Appellants

                                                 Versus.
            State of Orissa                                      ...........         Respondent

                           For Appellants        : M/s. R.K.Nayak, P.K.Moharaj,
                                                        R.P.Roy, S.K.Das and
                                                        S.P.Das

                           For Respondent        :       Government Advocate.


            IN CRLA NO.38 OF 2007
            Parsuram Bihari                                     ..........           Appellant

                                                 Versus.
            State of Orissa                                     ...........          Respondent

                           For Appellant         : M/s. R.K.Nayak, S.K.Dash,
                                                        S.P.Dash, P.C.Mohanty,
                                                        R.P.Roy and C.R.Kanungo.

                           For Respondent        :       Government Advocate.

            PRESENT
                              THE HON'BLE SHRI JUSTICE A.S. NAIDU
                                            AND
                              THE HON'BLE SHRI JUSTICE B.K.NAYAK
            --------------------------------------------------------------------------------------

Date of hearing : 09.10.2009 : Date of judgment: 10.2009

B.K.NAYAK, J. The appellants in both the appeals have challenged the judgment

and order dated 22.12.2006 passed by the Additional Sessions Judge,

Nayagarh in S.T.Case Nos.174/101/107 of 2005/2004, S.T.Case
2

Nos.175/102/204 of 2005/2004 and S.T.Case Nos.176/8/26 of 2005

convicting the appellants under Sections 302/120-B of the Indian Penal

Code and sentencing them to undergo R.I. for life and to pay a fine of

Rs.5,000/-, in default, to undergo R.I. for further period of six months.

2. The appellants along with four other accused persons, namely,

Mallick Soleman, Sk.Salim @ Pinku, Babuni @ Subrat Patra and Banua @

Lalbihari Das faced their trial being charged under Sections 452/120-B,

120-B, 302/120-B of the Indian Penal Code for allegedly committing the

murder of Dr.Abid Alli Baig in pursuance of a conspiracy hatched by them

by trespassing into the house of the deceased.

3. The totality of the prosecution case that came to light during the

course of investigation which was launched on the basis of the F.I.R. lodged

by one Nakula Das (P.W.6) is to the following effect :

The deceased Dr.Abid Alli Baig had a Clinic close to his paternal

house at Nayagarh where the informant was working as a Compounder. On

6.8.2002 at about 8.00 A.M., the informant came to the clinic in connection

with his duty and for opening of the Clinic he went into the house of the

deceased to collect the keys. On arrival, he found the front door and the

bedroom door of the house of the deceased lying open, so also the Almirah

and Box of the deceased kept inside the house. Some articles were lying

scattered inside the house. The informant called out the deceased, but he

failed to get any response. When he was about to come out of the house, he

discovered some blood on the wall of the drawing room of the house. On

suspicion he entered into the drawing room and found the doctor (deceased)
3

lying dead there in a pool of blood. The informant, thereafter, immediately

lodged the report against unknown culprits, on the basis of which the

Inspector-in-charge, Nayagarh Police station (P.W.49) registered P.S.Case

No.166 of 2002 and took up investigation.

4. During the course of investigation, P.W.49 proceeded to the spot

and found the dead body of the deceased and household articles were lying

scattered. He prepared spot map and took Video photographs, issued

requisition for Scientific Team and sniffer dog. On their arrival, they took

photographs of the spot and discovered some finger prints from the calling

bell switch on the outer verandah of the house, glass cover of the cup board

and liver of the lock of the drawing room and thereafter developed the finger

prints and took photographs. The Scientific Team also collected sample

blood from the spot and prepared a report vide Ext.4. The I.O. held inquest

over the dead body of the deceased in presence of witnesses and thereafter

sent it for post mortem examination. From the spot, he collected and seized

sample filter paper, broken white bottle soaked with blood and a book under

the title “Miracle of M.S.M.Natural Solution forpain”. The I.O. also seized

from the house of the deceased one SBBL gun (M.O.V) along with some

ammunitions, one Auto Pistol (M.O.VI), Air Gun (M.O.VII) and Revolver

(M.O.VIII). After the post mortem report, on the following day the I.O. seized

the wearing apparels and one Tabiz belonging to the deceased. On

01.01.2003, the I.O., Shri B.K. Raju (P.W.49) made over charge of

investigation to the Shri M.K. Subudhi, Inspector of C.I.D., (Crime Branch).

On 21.1.2003, Sri Uttam Kumar Singh, another Inspector of police, CID
4

(C.B.) (P.W.50) took over charge of investigation from Sri M.K.Subudhi.

During the course of investigation, P.W.50 examined the wife and sisters of

the deceased, re-examined other witnesses and recorded their statements.

On 04.02.2003, he visited the spot along with Director, State Forensic

Science Laboratory and seized some blood stains available on the door

screen of the drawing room. On 07.02.2003, he arrested all the accused

persons except accused-Mallick Soleman, collected their finger prints and

sent the same to Finger print Bureau. On completion of investigation, the

I.O. submitted charge-sheet making out a case that accused-Mirza Asaf Alli

Baig who is the brother of the deceased and his son accused Mirza Aslam

Alli Baig @ Amir had long standing enmity with the deceased over their

paternal properties for which they had threatened him of dire consequences,

and that accused-Parsuram Bihari had also enmity with the deceased, since

the latter in his capacity as the President of K.C. Club, Nayagarh had taken

over possession of a patch of land and constructed a boundary wall thereon

extending the area of the Club on its western side which was being objected

to by accused-Parsuram Bihari, who had also threatened the deceased to do

away with his life. It is further made out by the prosecution that these three

accused persons joined together and hired accused- Mallick Soleman,

Sk.Salim @ Pinku, Babuni @ Subrat Patra and Banua @ Lalbihari Das as

contract killers and conspired with them to kill the deceased and resultantly

in pursuance of such conspiracy these four accused persons caused murder

of the deceased inside his house in the night of 5/6.8.2008.
5

5. The defence plea is a complete denial of the involvement of the

accused persons in the alleged crime. It was further stated by the accused

persons that they were falsely implicated.

6. In order to prove its case, the prosecution examined as many as 52

witnesses. No defence evidence was led by the accused persons. Of the

prosecution witnesses, P.W.6 is the informant, P.Ws.3, 4, 5, 9, 11, 16, 20,

24, 38 and 39 are some members of K.C. Club, Nayagarh. P.Ws.22, 25 and

30 are the sisters and P.W.44 is the widow of the deceased. P.Ws.21 and 52

are two Scientific Officers. P.W.31 is the doctor of District Headquarter

Hospital, Nayagarh, who conducted post mortem on the dead body of the

deceased on police requisition. P.W.42 is the Executive Officer, Nayagarh

N.A.C. P.Ws.43, 48 and 34 are respectively Tahasildar., R.I. and Junior

Clerk of Revenue Department, P.Ws. 28, 29, 33, 35, 36 and 37 are the

seizure witnesses. P.Ws.8, 10, 15 and 32 are Potato godown owners. P.W.27

is the Manager of Bhuasuni temple, Ogalapada. P.Ws. 40 and 41 are the Toll

Gate Employees. P.Ws.12 and 13 are two independent witnesses. P.Ws.1, 2,

26, 46 and 47 are some residents of Nayagarh Town. P.Ws.18 and 45 are

two police personnel who had accompanied the dead body of the deceased

for post mortem examination. P.W.19 is the Video Recorder. P.Ws.14 and 17

are co-villagers of accused-Banua. P.W.51 was the S.I. of Police, Nayagarh

Police Station on the date of occurrence. P.Ws. 49 and 50 are two

Investigating Officers.

7. On consideration of the evidence on record, the trial court has

come to the following conclusions ;

6

(i) there is no cogent and consistent evidence on record
regarding implication of accused persons, namely,
Mallick Solemn, Sk.Salim @ Pinku, Babuni @ Subrat
Patra and Banua @ Lalbihari Das with the crime, and
that they have agreed among themselves to commit the
murder of the deceased;

(ii) there is no evidence on record that the accused persons,
namely, Asaf, Aslam and Parsuram have committed
house trespass in the night of occurrence in pursuance of
the criminal conspiracy;

(iii) the prosecution has successfully brought home the
charge under Sections 302/120-B of the I.P.C. against
the accused persons namely, Asaf, Aslam and Parsuram;

With the aforesaid findings the trial court acquitted accused

persons, namely, Mallick Solemn, Sk.Salim @ Pinku, Babuni @ Subrat

Patra and Banua @ Lalbihari Das of all the charges. The trial court however,

convicted the present appellants under Sections 302/120-B of the I.P.C.

8. In assailing the impugned order of conviction and sentence, the learned

counsel for the appellants submitted that in absence of any direct evidence

regarding the murder of the deceased, the whole prosecution case rests on

circumstantial evidence and that the only circumstance for which there is

some shaky prosecution evidence being the motive of the appellants to do

away with the deceased out of revenge would not by itself be sufficient to

convict them for the offence of murder. He also submits that there is no

acceptable evidence to prove the motive of the appellants to cause murder of

the deceased. His further contention is that the trial court having disbelieved

the prosecution story about the conspiracy that the four accused persons,
7

namely, Mallick Solemn, Sk.Salim @ Pinku, Babuni @ Subrat Patra and

Banua @ Lalbihari Das committed the murder of the deceased in pursuance

of a conspiracy entered into by all the accused persons, it could not have

convicted the appellants under Sections 302/120-B of the I.P.C.

9. The learned counsel appearing for the State submitted that the impugned

order of conviction and sentence is well founded and needs no interference.

10. It is submitted at the Bar that the impugned order passed by the trial

court in so far as it relates to acquittal of the four accused persons, namely,

Mallick Soleman, Sk.Salim @ Pinku, Babuni @ Subrat Patra and Banua @

Lalbihari Das has not been challenged.

11. There is no doubt that the deceased died a homicidal death, which is

established from the medical evidence. Evidence of the doctor (P.W.31), who

conducted post mortem examination over the dead body of the deceased,

and the post mortem report (Ext.10) reveal that the deceased sustained one

incised injury of size 8″ x 2″ x ½” x 1″ extending from the upper most part

of the neck 1″ lateral to midline on left side obliquely upwards the right ear

lobule and another incised wound of 4 ½” x ½” x 1/4″ over the left side

cheek on the mandible and some scratch marks over right side base of the

neck and upper chest. The incised wound on the neck had completely cut

the carotid artery and jagular veins causing copious haemorrhage that

brought about the death of the deceased.

12. The question that falls for determination is as to whether in pursuance of

a conspiracy entered into between the appellants and the four acquitted

accused persons, the latter committed the murder of the deceased so that
8

the appellants can be held guilty under Sections 302/120-B of the I.P.C.

Admittedly, there is no direct evidence with regard to murder of the

deceased. It appears from the evidence of the I.Os that during investigation

with the assistance of the Scientific Team, P.W.49 collected the finger prints

from the calling bell switch on the outer verandah of the house of the

deceased, from the glass cover of cup board and lever of the lock of the

drawing room which were developed and photographed, and that after arrest

of the accused persons by P.W.50, their finger prints were obtained and sent

to the Finger Prints Bureau for matching. P.W.50 has clearly admitted that

finger prints of the accused persons did not match with the prints collected

from the house of the deceased and, therefore, the finger prints report did

not connect the accused persons with the crime. In absence of any

semblance of evidence that the four acquitted accused persons in fact

committed the murder of the deceased or that they conspired with the

appellants to cause such murder, the trial court has acquitted them of all

charges. However, citing negligence and laches on the part of the first I.O.

(P.W.49), the court below has observed that for wrong and laches committed

by the Investigating Officer criminal justice should not suffer, and

accordingly convicted the appellants.

13. The whole prosecution case rests on circumstantial evidence. The

‘Panchsheel’ of proof of a case based on circumstantial evidence which is

usually called five golden principles have been stated by the apex Court in

Sharad Birdhichand Sarda v. State of Maharashtra; AIR 1984 SC 1622
9

and Md.Sher Bahadur Khan v. State; (1996) 10 OCR 167;. The principles

are as follows :

(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established,
as distinguished from ‘may be’ established;
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on
any other hypothesis except that the accused is
guilty;

(3) the circumstances should be of a conclusive
nature and tendency;

(4) they should exclude every possible hypothesis
except the one to be proved; and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.

14. In the instant case, the prosecution attributed motive to the appellants

for causing the death of the deceased. While appellant -Mirza Aslam Alli and

his son are said to have long standing enmity with the deceased over the

paternal property for which they had been threatening the deceased with

dire consequence, accused-Parsuram Bihari was allegedly having enmity

with the deceased since the latter as the President of K.C. Club, Nayagarh,

had taken over possession of a patch of land and constructed western side

boundary wall thereon which was being objected to by Parsuram Bihari and,

therefore, the deceased was being threatened by him. The trial court in
10

paragraph-12 of the judgment clearly discussed as to how the witnesses

examined by the prosecution to prove conspiracy among the accused

persons have not supported the prosecution story. There is no acceptable

evidence of any independent witness with regard to the motive of appellant-

Parsuram Bihari to do away with the life of the deceased. P.Ws. 22, 25 and

30, who are the sisters of the deceased, and P.W.44, the wife of the

deceased, were examined by the I.O. more than five months after the killing

of the deceased. With regard to the enmity between the deceased on the one

hand and his accused brother-Asaf and nephew-Amir on the other, the

evidence of the aforesaid witnesses reveal that there was quarrel and ill

feeling between them over the family properties, after their father died and

the deceased came to Nayagarh in 1987, and several civil and criminal

litigations were started between them. However, the evidence of P.W.6, who

is very much acquainted with the affairs and the relationship between the

deceased and his accused brother, reveals that at the time of the incident

they were pulling on well with each other. He has further stated that

accused-Asaf had undergone, a surgery for harnia at a Nursinghome at

Nayagarh and the deceased was looking after him. P.W.26 is a lawyer of

Nayagarh and family friend of the deceased and his brother. He has

admitted in his evidence that there was ill feeling between the deceased

and his brother and there were several litigations between them. He

negotiated for a compromise and ultimately all the cases including a

partition suit were compromised in the year 2000. In the light of such

evidence, it is hard to believe that accused-Asaf and his son had still a
11

motive to take revenge on the deceased by causing his murder.

15. Law is well settled that motive may be a circumstance to raise suspicion

against the accused, but suspicion howsoever strong it may be cannot take

the place of real proof. On the basis of such a circumstance, it is not

possible to draw an irresistible conclusion which is incompatible with the

innocence of the accused, particularly when there is no other circumstance

connecting the appellants with the crime in question.

16. There are other suspicious circumstances which remain unexplained and

raise doubts about the complicity of the appellant in the crime. First of all,

the finger prints collected from the calling bell switch on the outer verandah

of the house, glass cover of the cup board and lever of the lock of the

drawing room did not match with the finger prints of any of the accused

persons. This means that real persons who had left finger prints could not

be identified. Prosecution has failed to rule out the possibility of

involvement of those persons, who had left their finger prints. One open

condom was recovered from the bed room of the deceased on the day

following the murder during the course of investigation. Admittedly, the wife

of the deceased was not present with the deceased in the night of murder.

The prosecution has not come out with any explanation about the

availability of an open condom in the house of the deceased. The wife of the

deceased has admitted in her cross-examination that her husband was a

man of loose character and he had so many enemies. It is also in the

evidence that one Antaryami Das was inimical towards the deceased as

because the deceased had seized a truck which Antaryami had purchased
12

on loan with the guarantorship of the father of the deceased. All these

unexplained facts also raise a grave doubt about the complicity of the

appellants in the alleged offence.

17. The trial court has categorically found that conspiracy to kill the

deceased has not been proved and, therefore, acquitted other four accused

persons, who allegedly committed the murder in pursuance of the

conspiracy. In the cases of Fakhruddin v. The State of Madhya Pradesh;

AIR 1976 S.C. 1326 and Girija Shankar Misra v. State of U.P.; AIR 1993

S.C. 2618, it has been held by the Apex Court that the offence of conspiracy

cannot survive the acquittal of alleged co-conspirators. If the alleged real

murderers, namely, Mallick Soleman, Sk.Salim @ Pinku, Babuni @ Subrat

Patra and Banua @ Lalbihari Das were acquitted for want of proof of

conspiracy and murder by them pursuant to such conspiracy entered into

by them with the present appellants, the present appellants who were

alleged co-conspirators cannot be held guilty under Section 302 read with

Section 120-B of the I.P.C.

18. In the light of the discussions made above, we are of the view that the

impugned judgment of conviction and sentence of the appellants under

Sections 302/120-B of the I.P.C. cannot be sustained. We, accordingly, set

aside the said order of conviction and sentence and acquit the appellants in

both the appeals of the charges under Sections 302/120-B of the I.P.C.

Accordingly, both the appeals are allowed.

……………………….

B.K.Nayak,J.

13

A.S.Naidu, J. I agree.

………………………..

A.S.Naidu, J.

Orissa High Court, Cuttack
The     . November,2009/G.B.Samal
 

State Of Orissa And Another vs All Orissa Private Secondary … on 29 October, 2010

Orissa High Court
State Of Orissa And Another vs All Orissa Private Secondary … on 29 October, 2010
               HIGH COURT OF ORISSA: CUTTACK

    WRIT APPEAL NOS. 148,149,215,222,223 & 226 OF 2010

From an order dated 25.03.2010 passed by the learned Single
Judge in W.P. (C) No. 5640 of 2010.
                               --------------

W.A. No.148 of 2010

State of Orissa and another ………… Appellants

-Versus-

All Orissa Private Secondary Training
Schools Management Association
and another                             ............        Respondents

                                Mr. A.K.Mohanty, Advocate Genral &
   For Appellants             : Senior Standing Counsel, School and
                                Mass Education Department.

   For Intervenor              :   M/s Umesh Patnaik & D.Ray

   For Respondent No.1         :   M/s D.N. Mohanty, P. Das,
                                   S. Das & J.N. Choudhury

   For Respondent No.2         :   M/s Pradipta Mohanty,D.N.
                                   Mohapatra, P.K.Nayak,
                                   J.Mohanty and S.N.Dash.

W.A. No.149 of 2010

State of Orissa and another                  ............     Appellants

                          -Versus-
Managing Committee, Chandimata
Secondary Training School, Gopinathpur
and another                          ............           Respondents

                                Mr. A.K.Mohanty, Advocate Genral &
   For Appellants             : Senior Standing Counsel, School and
                                Mass Education Department.


   For Respondent No.1         :   M/s G.K. Nanda, R.R.Das

   For Respondent No.2         :   M/s Pradipta Mohanty,D.N.
                                   Mohapatra, P.K.Nayak,
                                   J.Mohanty and S.N.Dash.
                                     2



W.A. No.215 of 2010

State of Orissa and another                     ............      Appellant

                              -Versus-

Binapani Secondary Training School,
Orasaka, Bhagabatpur and others                ............            Respondents

                                  Mr. A.K.Mohanty, Advocate Genral &
   For Appellants               : Senior Standing Counsel, School and
                                  Mass Education Department.


   For Respondents No.1 to 11:          None

   For Respondent No.12         :       M/s Pradipta Mohanty,D.N.
                                        Mohapatra, P.K.Nayak,
                                        J.Mohanty and S.N.Dash.
W.A. No.222 of 2010

State of Orissa and another                     ............      Appellants

                              -Versus-

Brahmani Secondary Training School,
Lalei, Sundargarh
and another                         ............                Respondents

                                  Mr. A.K.Mohanty, Advocate Genral &
   For Appellants               : Senior Standing Counsel, School and
                                  Mass Education Department.

   For Respondent No.1         :        None

   For Respondent No.2         :        M/s Pradipta Mohanty,D.N.
                                        Mohapatra, P.K.Nayak,
                                        J.Mohanty and S.N.Dash.

W.A. No.223 of 2010

State of Orissa and another                     ............      Appellants

                         -Versus-
Jagannath Secondary Training School,
Badakharmanga, Cuttack & others.     ...........                     Respondents

                                    Mr. A.K.Mohanty, Advocate Genral &
For Appellants            :         Senior Standing Counsel, School and
                                    Mass Education Department.
                                                            3




                 For Respondents No.1 to 12:                   None.

                 For Respondent No.13                :         M/s Pradipta Mohanty,D.N.
                                                               Mohapatra, P.K.Nayak,
                                                               J.Mohanty and S.N.Dash.

            W.A. No.226 of 2010

            State of Orissa and another                             ............        Appellants

                                                    -Versus-

            Jagannath Secondary Training School,
            Badakharmanga, Cuttack & others.     ............                                    Respondents

                                                           Mr. A.K.Mohanty, Advocate Genral &
                 For Appellants                          : Senior Standing Counsel, School and
                                                           Mass Education Department.


                 For Respondents No.1 to 14:                   None.

                 For Respondent No.15                :         M/s Pradipta Mohanty,D.N.
                                                               Mohapatra, P.K.Nayak,
                                                               J.Mohanty and S.N.Dash.
            P R E S E N T:

                          THE HON'BLE CHIEF JUSTICE MR. V.GOPALA GOWDA
                                                 &
                           THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY.
        Date of hearing: 27.09.2010                   : Date of Judgment: 29.10.2010

——————————————————————————————————–

I.Mahanty, J. The present writ appeal has been filed by the State Government

and other officers of the State Government, seeking to challenge the

judgment dated 25.03.2010 passed by the learned Single Judge of this

Court in W.P.(C) No.5640 of 2009 and connected writ petitions filed by the

All Orissa Private Secondary Training Schools Management Association,
4

(petitioner-respondent No.1) and others. The Association in the aforesaid

writ petition had sought for a direction to the opposite parties therein, to

allow the students of the member-institutions of the petitioner-association,

who have completed their Certified Teachers Course (in short, ‘the C.T.

Course’) in the sessions 1989-90, 1990-91 and 1991-92 to appear in the

C.T. Examination, 2009 to be conducted by the Board of Secondary

Education, Orissa, Cuttack.

2. This writ petition came to be allowed by the learned Single

Judge vide order dated 25.03.2010, inter alia, by passing the following

directions:-

” This Court, therefore, while setting aside the orders
passed by the Principal Secretary declining to entertain
the claim of the member – institutions, disposes of the
writ petition directing the Principal Secretary, School and
Mass Education Departments to reconsider the reports of
the Collectors which were called for and keeping in view
the fact that previously the Government, as a matter of
policy, decided to grant an opportunity to the students of
the unrecognized Private Secondary Training Schools to
appear in the C.T. examination on one time basis on two
occasions and once pursuant to the orders passed by this
Court in OJC No.5629 of 1991, it is felt appropriate that
the Principal Secretary on reconsidering the report of the
Collector, which were given pursuant to the orders of this
Court, by the Collectors, at the first instance or
subsequently, where the Collectors have given favourable
reports with regard to infrastructure and staff and the
attendance of the students, shall allow such students till
the session 1991-92 to appear the C.T. examination to be
conducted by the Board of Secondary Education, Orissa.
The Board of Secondary Education upon being
communicated shall allow such students of the
petitioner-institution of 1989-90, 1990-91 and 1991-92
to appear in the C.T. Examination, which should be
conducted once for all latest by the end of 2010.”

5

3. Mr. A.K.Mohanty, learned Advocate General appearing for the

appellants raised the following grounds of challenge:-

i) The students of the institutions run by the Respondent

Association are not eligible to appear in the C.T. Examination since the

institutions in which they purportedly studied were opened without

obtaining any opening permission from the concerned authority as required

under the Orissa Education Act, 1969 nor were the institutions ever granted

recognition by the State Government nor Board. Therefore, it is asserted

that the students of the institutions which have not been permitted nor

granted recognition cannot be permitted to appear in any examination

conducted by the Board.

ii) Section 7-E of the Orissa Education (Amendment) Act,

1989 prohibits establishment and recognition of certain institutions, which

reads thus:

“Section-7E:Notwithstanding anything to the contrary
contained in this Act, on and after the commencement of
Orissa Education (Amendment) Act, 1989 the State
Government shall not accord permission for
establishment of any Private Secondary Training School
or Private Training College or recognize any such school
or college established, if any, prior to the said date.”

iii) Section 7-F of Orissa Education (Amendment) Act, 1989

stipulates that “Government is not bound to accord permission for

establishment of or reorganize certain training schools and colleges claiming

to have been established, prior to 14.8.1989 when the Orissa

Education(Amendment) Act, 1989 came into force.

“Section 7-F: Notwithstanding anything contained in this
Act or the rules made there under or in any Judgment,
6

decree or order of any Court the State Government shall
not be bound to accord permission for establishment of
any Private Secondary Training School or Private Training
College, or recognize any school or college established, if
any, prior to the 14th day of August, 1989 and non-
recognition of such school or college shall not be
questioned in any Court of Law or otherwise be opened to
challenge.”

iv) The Chapter IX of Board of Secondary Education

Regulation Act, 1955 stipulates that, no school, which is not recognized by

the Board shall be permitted to present candidates for any examination

conducted by the Board and in the present case, since it is an admitted fact

that, the respondents school is not recognized by the Board of Secondary

Education, accordingly these institutions are not competent to present any

students in the C.T. Examination conducted by the Board of Secondary

Education Orissa.

v) The judgment of the learned Single Judge impugned

hereinabove is contrary to the ratio decided in the case of Managing

Committee, Swarnachuda Secondary Training School and 39 others, v.

State of Orissa and others, reported in 77 (1994) CLT 459.

4. Mr. J.Pattnaik, learned Senior Advocate appearing for some of

the respondents in the aforesaid batch of cases, raised a preliminary

objection to the maintainability of the present writ appeal. He further

submitted that in an earlier W.P.(C) No. 10372 of 2008 orders were passed

therein on 24.9.2008, which was modified on 12.12.2008, directing the

State Government to verify the infrastructure facilities of the members of the

petitioner-association and to ascertain as to whether the students had

completed their course in those schools. It was further directed that, if on
7

enquiry, findings therein are in the affirmative, the Government may

consider allowing such students to appear in future examination in the C.T.

course and while considering these aspects, the Government should also

take into account as to whether any prior approval or affiliation was

necessary of any University or Board for imparting such course.

4.1 Thereafter in Misc. Case No. 6989 of 2009 the learned Single

Judge vide order dated 3.8.2009 had directed the Board of Secondary

Education Department, Orissa to accept the submission of forms along with

the required examination fee and to permit the students to appear in the

C.T. Examination, 2009 which was scheduled to be held on 8.9.2009, but

their results were directed not to be declared without leave of this Court.

4.2 A writ appeal was filed by the State Government against the

aforesaid direction i.e., Writ Appeal No. 146 of 2009 in which orders were

passed limiting the holding of examinations only the “regular students of

Government Secondary Training Schools” and in so far as students of

Private Secondary Training Schools (Members of the Respondent No.1

Association were concerned), the learned Division Bench vide order dated

3.2.2009 quashed aforesaid directions and instead held that the rights of

such students of unrecognized private institutions would be decided in

course of the final decision in the writ application which were then pending

before the learned Single Judge.

4.3 The learned Single Judge finally decided after hearing the

parties and delivered its judgment on 25.3.2010 in W.P. (C) No. 5640 of

2009, which is the subject matter of challenge in the present writ appeal. In
8

view of the aforesaid facts, Mr. J.Pattnaik, learned Senior Advocate

submitted that by dismissal of the Writ Appeal No. 146 of 2009, the

judgment passed by the learned Single Judge in W.P. (C) No. 10372 of

2008 as confirmed and since the State Government had failed to implement

the decision passed by the learned Single Judge, even though, the State

claimed to have implemented the same and had carried out necessary

enquiry, but had rejected the claim made by the members of the

Respondent No.1 Association on different ground. It is submitted that the

State Government was bound by the dismissal of its earlier writ appeal and

therefore a subsequent writ appeal should not be entertained.

5. Mr. Routray, Mr. J.K.Rath, learned Senior Advocates and

Mr. K.K.Swain, learned counsel for the respondents submitted that, the

ratio of the Swarnachuda’s case(supra) is that, the Secondary Training

Schools having no infrastructure and ill-equipped institutions cannot be

permitted to present their candidates in the C.T. Examination. It is asserted

that in W.P. (C) No. 5604 of 2009 decided by the learned Single Judge and

the dismissal of State’s challenge in Writ Appeal No. 146 of 2009, affirmed

the directions issued by the learned Single Judge to make enquiry regarding

infrastructure of the schools and as to whether the students have

prosecuted their studies in the schools or not, and further as to whether

prior permission was necessary by the Board for presentation of such

candidates to appear at the C.T. Examination. All the learned counsel

asserted that since the reports of the inquiry at the behest of the State were
9

in the affirmative, there was no justification for rejecting the prayer of the

respondents seeking permission to appear at the ensuring C.T. examination.

6. It was further submitted that since no prior permission was

necessary for private candidates to appear at the C.T. Examination and

therefore, it cannot be said that the direction of the learned Single Judge to

permit the students of the respondent association to appear at the C.T.

Examination as private candidates was contrary to the ratio laid in

Swarnachuda’s case. It is asserted therefore that, the direction of the

learned Single Judge passed in W.P.(C) No. 10372 of 2008, which was

upheld by the Division Bench in the writ appeal and the subsequent order

passed in W.P.(C) No. 5640 of 2009 which is the subject matter of the

present writ appeal, is in the nature of implementation of an earlier order

passed in W.P.(C) No. 10372 of 2008 and therefore it cannot be said to be

contrary to the ratio in Swarnachuda’s case in any manner, as the learned

Single Judge took into consideration Swarnachuda’s case and after

considering the implication of the said judgment directed for enquiry with

regard to infrastructure, prosecution of study by the students and also as to

whether any recognition by the Board, for such candidates to appear in the

C.T. examination was at all necessary.

7. It is further submitted on behalf of the respondents that the

Orissa Secondary Education Act, 1953 under which the Board’s Regulation

has been framed i.e., Regulation-6 of Chapter 10-D stipulates, the eligibility

criteria only for private candidates of “recognized” Secondary Training

Schools to appear at the C.T. Examination. It is asserted that the said
10

provision does not state anything about eligibility of the private candidates

of “unrecognized” Secondary Training Schools. Reliance was also placed on

Article 437 of the Orissa Education Code, which is quoted below for the

purpose of asserting that candidates of “unrecognized” Secondary Training

Schools can also be permitted to appear at the C.T. Examination.

“437. Schools under Private Management:-

School under private Management may
recognize by the Director, Secondary Training Schools
and may be permitted to send of students to the
Teachers Certificate Examination.”

8. In this respect the learned Advocate General submitted that

though Writ Appeal No. 146 of 2009 had been dismissed on the ground of

delay, the directions, issued in W.P.(C) No. 10372 of 2008 was limited to,

directing the Secretary, Board of Secondary Education to undertake an

enquiry. The Secretary, Education complied with such directions and on

conclusion of such enquiry, rejected the prayer of the petitioners to be

permitted to appear in the C.T. Examination, since their institutions were

neither permitted nor recognized by the State nor the Board. The directions

issued by the learned Single Judge, vide judgment dated

24.9.2008/12.12.2008 in W.P.(C) No.10372 of 2008, was not only limited to

an obligation to conduct an enquiry, but was also to “take into account as to

whether any prior approval or affiliation was necessary of any University or

Board for imparting such course”. In compliance of the aforesaid direction

though enquiry as directed was duly conducted, the State authorities,

rejected the respondents prayer since it was concluded the Respondent-
11

institutions were neither permitted nor recognized as required under the

Orissa Education Act and Rules thereunder. Therefore, the Respondent

Association filed W.P.(C) No. 5640 of 2009, which came to be allowed vide

order dated 25.3.2010 and hence, the present writ appeal filed by the State

was maintainable, irrespective of the fact that the State’s earlier Writ Appeal

No. 146 of 2009 had been dismissed.

9. Mr. A.K.Mohanty, learned Advocate General placed reliance on

a press note dated 11.05.1990, issued by the State Government in the

Education Department which had permitted the students of unrecognized

C.T. training institutions which had taken admission in 1988-89 or prior

thereto and whose students had completed two years of study to appear at

the 1990 C.T. examination, as “private candidates” and other stipulations

contained therein and it was also declared therein that, this opportunity

was the “last chance” and that no further opportunity would be granted

either to unrecognized private institutions or their students. Mr. Mohanty,

further submitted that although a number of various writ applications had

been filed against the aforesaid decision of the State Government, since the

C.T. examination could not be held on the date as scheduled, this Court in

various writ petitions held the cut-off date of 31.05.1990 as contained in the

Press Note dated 11.05.1990, for making application to be unsustainable

and extended the last date of application till 21.9.1991. While extending the

period for application, the High Court, at the said time uphold the decision

of the State Government dated 11.5.1990, that it would be the “LAST

CHANCE” for private unrecognized institutions and students thereof to
12

apply for the C.T. Examinations. Accordingly, learned Advocate General for

the State submitted that, the C.T. examination for the year 1990 was

ultimately held on 26.11.1991 and neither the member institutions of the

Respondent Association nor their students made necessary applications

within the time stipulated.

9.1 Thereafter on 11.3.1992 a resolution was passed in the Orissa

Legislative Assembly to the following effect:-

“That the House unanimously resolves that no body will
be allowed to appear at the C.T. examination excepting the
students of Government C.T. schools. Government will also
take appropriate steps to deal with such fake C.T. schools
including their illegal acquisition of huge assets.”

10. Thus, the decision of the State Government dated 11.05.1990

directing holding of the last examination in 1990 and the Resolution of the

Orissa Legislative Assembly, noted hereinabove came to be challenged by a

number of institutions, inter alia, on the ground that, the decision of the

Government not to hold further examination was unwarranted, particularly

when the record of the petitioners institutions were being verified to find out

whether the institutions were genuine or not as well as the genuineness of

the students and the denial to hold further examination had affected a large

number of students. Their further grievance was that restricting further

opportunity to appear in subsequent C.T. examination only to those

students who had appeared and failed in 1991 C.T. examination was illegal.

10.1 This contention of the petitioners was out rightly rejected by

this Court in the case of Managing Committee, Swarnachuda (supra), by

coming to hold as follows:-

13

“On 11.5.1990 the State, as indicated above,
decided to have Special C.T. Examination in the year
1990’once for all’. In January, 1991, that is 28.1.1991
to be precise, the State took a decision to allow only
such students who had operated as private candidates
and had failed. On 2.4.1991 a notification was issued
extending the date of examination. On 1.5.1991 there
was again postponement of the examination. In between
the legality of the Government Order dated 28.1.1991
was assailed in this Court and it was held that those
un-recognized schools which had fulfilled the conditions
laid down in both the Government Orders were eligible
to send their students. On 17.5.1991 the Director of
Secondary Education wrote to the State Government
that according to G.O. dated 11.5.1990, 67 un-

recognized S.T. Schools had applied on or before
31.5.1990. This cut-off date was challenged in this
Court. It was held that there was no justification for
fixing up the date. The last date for filling up the forms
was 16.9.1991 and 21.9.1991 was the last date for
submission of forms with fine. The date of examination
which was originally posted to 30.10.1991 was
adjourned to 26.11.1991. There was, therefore, enough
notice to the institutions about the Government decision
of giving one chance to the students. The process
started in the year 1990 and the examination
commenced from 26.11.1991. Except in one case, i.e.,
Olavar S.T.School, petitioner in O.J.C. No. 7305 of 1992
in all other cases institutions moved this Court for the
first time either on 26.9.1991 or subsequent there to. It
is hard to believe that an institutions set up for
imparting teaching and preparing students to take the
examination would lie in deep slumber and not even
take steps for filling up forms of the students and/or to
take no effective steps in that regard. A feeble plea has
been taken that applications were filed before the
Director or the Inspector of Schools as the case may be.
That is hardly of any consequence. The institutions were
aware that there was only one chance which was being
granted to the institutions to present their students.
Effective steps were not taken. No explanation
whatsoever has been offered for the inaction. That goes
a long way to prove about the non-genuineness of the
institutions and the students. It is unbelievable that the
students whose careers are at stake would remain
dormant and act as silent spectators. We, therefore, find
no scope for interference in these writ applications.”
14

10.2 Mr. A.K.Mohanty, learned Advocate General concluded by

stating that in Swarnachuda’s case, a Division Bench of this Court did not

even permit entertaining applications beyond the last date fixed by the

Court on 21.9.1991, therefore, no question of entertaining similar

applications after a period of 17/18 years from the date of the said

judgment should at all arise.

11. In the light of the contentions raised by the learned

counsel for the respective parties as noted hereinabove, it becomes

essential to note certain undisputed facts:

(i) The member institution of the Respondents
Association are admittedly all institutions who have
not been recognized by the State of Orissa in the
Department of Education.

(ii) The Respondents Association claim their
institutions were all established prior to 1989 i.e.,
prior to coming into force the Section 7-E and
Section 7-F of the Orissa Education Act, 1969 but
have never been accorded permission for
establishment of the institution.

(iii) The learned Single Judge has directed the students
who have joined various private unrecognized
institutions in the year 1989-90, 1990-91, 1991-92,
i.e., for a period beyond those covered by the Press
Note dated 11.05.1990.

(iv) In W.P.C. No.1037 of 2008 judgment dated
24.9.2008 was modified on 12.12.2008 although
directions had been issued by the learned Single
Judge to conduct an enquiry, at the same time, the
State Government had been also directed to take
15

into account “as to whether any prior approval or
affiliation was necessary.”

            (v)    State Government decision published in Press Note
                   dated   11.5.1990     granting     "last   chance"   to

institutions/students of unrecognized private C.T.
Schools was known to all private unrecognized
institutions and their students.

(vi) The Orissa Legislative Assembly on 11.3.1992 had
resolved that, nobody will be allowed to appear at
future C.T. Examination excepting the students of
Government C.T. Schools in future.

11.1 In the light of the aforesaid facts that emanate from the

pleadings of the parties and which remain uncontroverted, the main issue

for consideration that arises in the present case is, as to whether students

of unrecognized private institutions who claim to have prosecuted their

studies for C.T. Examination ought to be permitted to appear in the C.T.

Examination of 2010 as directed in the impugned order.

12. Now it becomes necessary to deal with the contentions

advanced by the learned counsel for the respondents:

(a) In so far as the objection of maintainability is concerned,

on the ground that and earlier Writ Appeal No. 146 of 2009 filed by the

State Government had been dismissed and therefore the present writ appeal

was not maintainable, deserves to be rejected. It is clear from the pleadings

of the parties that an earlier Writ Appeal No. 146 of 2009 has been filed

seeking to challenge the judgment rendered by the learned Single Judge in

W.P.(C) No. 10372 of 2008. In the aforesaid writ petition, the learned Single

Judge had not only directed enquiry into the infrastructure and the
16

genuineness of the students, at the same time, the learned Single Judge

had also directed the State Government, to take a decision on the issue as

to whether the Member Institution of the Respondent Association required

approval and/or recognition from the State as well as the Board. Therefore,

as consequence of the aforesaid direction although enquiry was carried out

the State Government took a fresh decision that, the Members Institution of

the respondent association could not be permitted to present their

candidates in future C.T. examination, since the said institutions were

neither permitted to be established nor recognized by the State or Board.

This gave rise to a fresh cause of action, for which reason the Respondent

Association once again filed W.P. (C) No. 5640 of 2010. This petition came to

be disposed of by judgment dated 25.3.2010 and is the subject matter of the

present appeal and, therefore, clearly maintainable in law. Therefore, the

objection raised on the issue of maintainability of the present writ appeal

stands rejected.

(b) The further contention raised by the respondent that the

enquiry carried out by the State Government, pursuant to the direction

issued in W.P.(C) No. 10372 of 2008, clearly establishes the “bonafide of the

Member institutions of the respondent association” as well as their students

and therefore the State ought not to have rejected the prayer of the

respondent association to permit the students to appear at the ensuing C.T.

examination for the year 2010. This objection of the respondent also

deserves to be rejected.

17

In the case of Swarnachuda (supra) similar plea on behalf of the

petitioners therein had been negatived by the Hon’ble Division Bench,

upholding the decision of the State Government dated 11.5.1990 (Press

Note) that the said opportunity was the “last chance” for the students for

un-recognized private C.T. colleges to appear in 1990 C.T. examination and

it had been made clear therein that, no further opportunity would be

granted and that the institutions should undertake not to admit any

students in future. This decision of the State Government has been up-held

in Swarnachuda’s case and the Hon’ble Division Bench has observed that,

no further opportunity could be afforded to such students who while being

fully aware of the decision of the State Government purportedly claim to

have continued their studies. Apart from that the Court came to conclude

that the unrecognized private schools as well as their students were fully

aware of the aforesaid decision and therefore, prayer of the petitioners

based on the existence of infrastructure and genuineness of the students

cannot be accepted as the basis for granting relief to the respondents.

(c) A further contention of the respondents is that, Article

437 of the Orissa Education Code athorises the students of the C.T. schools

under the private management to appear as private candidates at the C.T.

examination. Article 437 of the Orissa Education Code, specifically applies

only to schools under private management which have been “recognized” by

the Director, Secondary Training Schools. In the present case admittedly the

member institutions of the respondent association have not been recognized

either by the State Government or by the Director, Secondary Training
18

Schools. Therefore the question of permitting such students under the guise

of Article 437 of the Orissa Education Code does not arise.

(d) The further contention of the respondent and in

particular the “intervenor” (the students of the opposite party respondent

member institution) for being shown sympathetic consideration since they

had concluded their education years ago and are not being permitted to

appear at the C.T. examination has also no merit and has to be rejected. It

is well settled by a series of judgments of the Hon’ble Supreme Court, in the

case of State of Maharashtra v. Vikas Sahebrao Roundale and others,

(1992) 4 SCC 435, where the Supreme Court held that, the students of

unrecognized and unauthorized educational institutions could not have

been permitted by the High Court on a writ petition being filed to appear in

the examination since it would lead to “Slackening the standard and judicial

fiat to control the mode of education and examining system are detrimental

to the efficient management of the education. Time and again, therefore,

this Court had deprecated the practice of educational institution admitting

the students without requisite recognition or affiliation. In all such cases

the usual plea is the career of innocent children who have fallen in the

hands of the mischievous designated school authorities. As the factual

scenario delineated against goes to show the school has shown scant

regards to the requirements for affiliation and as rightly highlighted by

learned counsel for the CBSC, the infraction was of very serious nature.

Though the ultimate victims are innocent students that cannot be a ground

for granting relief to the appellant. Even after filing the undertakings the
19

School non-challantly continued the violations. Students have suffered

because of the objectionable conduct of the school. It shall be open to them

to seek such remedy against School as is available in law, about which

aspect we express no opinion.

It was also further well settled by the Hon’ble Supreme Court

in the case of A.P.Christians Medical Education Socieity v.Government

of Andhra Pradesh ( 1986) 2 SCC 667, where it has been held that:

“We cannot by our fiat direct the University to disobey
the statute to which it owes its existence and the regulations
made by the University itself. We cannot imagine any thing
more destructive of the rule of law than a direction by the court
to disobey the laws.”

In view of the aforesaid decisions of the Hon’ble Supreme Court

this Court cannot entertain this contention of the intervenor and therefore

the same stands rejected.

13. On perusal of the impugned judgment passed by the learned

Single Judge it would be clear therefrom that the learned Single Judge did

take note of the judgment in Swarnachuda’s case but failed to discuss the

same and held the same to be inapplicable merely by observing as follows in

para-8:-

“Much water has flown in between, from the date
of the said judgment of this Court in the case of
Managing Committee Swarnachuda Secondary
Training School and 39 others (supra) and the
position as on today. xx xx”

14. It is important to note herein that no other reason or ground is

noted in the impugned judgment to try and distinguish the present case
20

with the fact situation that arose for consideration in Swarnachuda case

(supra).

15. We are of the considered view that, the learned Single Judge

has failed to take into consideration the “ratio decidendi” of the judgment

rendered by the Division Bench of this Court in Swarnachuda’s case

(supra). We are afraid that the facts of a case by themselves do not by

themselves become the “ratio decidendi” of the case. No doubt, the Hon’ble

Division Bench in the aforesaid judgment did refer to in adequate

infrastructure and deficient teaching taking place in various schools, but

this observation by itself does not form the ratio decidendi of the case. In

our considered view, the conclusion of the Court was that, all private

unrecognized institutions and their students had adequate notice of the

Government decision published on 11.5.1990 giving one “last chance” to the

students/institutions and the process had began in the year 1990 and the

examinations were ultimately held on 26.11.1991. Moving the Court

thereafter was not permissible, since the Court held that, it was hard to

believe that an institution set up for imparting teaching and preparing

students to take the examination would lie in deep slumber and not even

take steps for filling up forms of the students and/or to take no effective

steps in that regard. The institutions were aware that there was only one

chance which had been granted to the institutions to present their students

and effective steps were not taken. No explanation whatsoever has been

offered for the inaction. This goes a long way to prove about the non-

genuineness of the institution and the students. It is unbelievable that the
21

students whose careers are at stake would remain dormant and act as

silent spectators.

16. From the above it is clear that the “ratio decidendi” of the

aforesaid case is that, since the institutions and the students had not

availed the “last chance”, offered to them by the State Government, within

the period as stipulated, no further opportunity could be afforded to such

students, since granting such an opportunity would amount to once again

granting another “God-sent” opportunity for the members of the respondent

association to manipulate records to show that they had trained a large

number of students in the past years, which was deprecated by this Court

in Swarnachuda (supra). This, in our considered view is the ratio decidendi

of Swarnachuda (supra) a judgment delivered by a Division Bench of this

Court, which was binding on the learned Single Judge.

17. It is well settled by decision rendered by a Bench of the Hon’ble

Supreme Court consisting of 11 Judges presided by Hon’ble

Mr. M.Hidayatullah, Chief Justice of India (as his Lordship then was) in the

case of H.H.Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur

and others v. Union of India , reported in AIR 1971 SC 530 in particular

para-138 it has been observed that:-

“xx xx. It is difficult to regard a word, a clause or a
sentence occurring in a judgment of this Court, divorced
from its context, as containing a full exposition of the law
on a question when the question did not even fall to be
answered in hat judgment.”

The aforesaid decision has been referred to and cited in various

later judgments including in the case of Commissioner of Income Tax v.
22

M/s. Sun Engineering Works (P) Ltd., AIR 1993 SC 43 in which, it is

stated that the ratio decidendi is the principle underlying the decision and a

word or sentence in a judgment cannot be held to be a law as declared.

18. We are further to note that, it is well settled principle of law that

a judgment of the Division Bench of the High court is binding on a learned

Single Judge. It has been settled by the Hon’ble Supreme Court in the case

of Food Corporation of India & another v. Yadav Engineer & contractor,

reported in AIR 1982 SC 1302, that “the Judicial Unity demands that a

binding decision to which attention was drawn should neither be ignore nor

overlooked.” Further in the case of Jai Kaur & others v. Sher Singh &

others, AIR 1960 SC 1118, particularly in para- 10, which reads thus:-

” One would have thought that after the
pronouncement by a Full Bench off the High Court, the
controversy would have been set at rest for at least the
Punjab Courts, Surprisingly, however, only a few years
after the above pronouncement, the question was raised
again before a Division Bench of the East Punjab High
court in Mohinder Singh v. Kehr Singh. The learned
Judges then choose to consider the matter afresh and in
fact disregarded the pronouncement of the Full Bench, in
a manner, which can only be said to be unceremonious.”

19. In view of the law enunciated by the Hon’ble Supreme Court
and the effect of a binding precedent, in the facts of the preset case, we are
of the considered view that although the learned Single Judge has resulted
the judgment of the Division Bench rendered in the case of Swarnachuda
(supra), yet the “ratio decidendi” therein has been clearly ignored. The
issues raised in the present appeal have already been settled by a Division
Bench of this Court more than 17 years ago. The learned Single Judge
chose to consider the matter afresh and in fact, clearly disregarded the
pronouncement of Division Bench in the case of Swarnachuda (supra) in a
manner which can only be said to be unceremonious.

23

20. Accordingly, we allow the writ appeals, consequently hold the

judgment of the learned Single Judge is not legal and set aside the same

and further direct dismissal of the writ petitions, but in the circumstances

without costs.

……………………

I.Mahanty, J.

V. Gopala Gowda,C.J.           I agree.

                                                       ........................
                                                        Chief Justice




      ORISSA HIGH COURT, CUTTACK
           29th October, 2010 /AKD
 

Sudarshan Rout vs Unknown on 27 October, 2010

Orissa High Court
Sudarshan Rout vs Unknown on 27 October, 2010
                          HIGH COURT OF ORISSA : CUTTACK

                                   W.P.(C) NO.4238 OF 2003


          In the matter of an application under Articles 226 and 227 of the
          Constitution of India.

          Sudarshan Rout                                     .......                  Petitioner.

                                                     Versus.

          Commissioner-cum-Secretary to Govt.
          of Orissa and Others                              ...........                  Opp.parties


                        For petitioner        :      M/s. Manoj Mishra, P.K.Das,
                                                          D.K.Patnaik, B.B. Mohanty,
                                                          P.K. Nanda

                        For opp. parties      :      Additional Standing Counsel


          PRESENT

                           THE HON'BLE SHRI JUSTICE L. MOHAPATRA
                                           AND
                             THE HON'BLE SHRI JUSTICE B.K.NAYAK

          --------------------------------------------------------------------------------------

Date of hearing :13.08.2010 : Date of judgment: 27.10.2010

B.K.NAYAK, J. In this writ application, the petitioner has prayed to quash

his retrenchment order under Annexure-6 and direct the opposite parties

to treat him as continuing in service and grant all consequential and

financial benefits.

2. The case of the petitioner is that on 26.09.1978 he was

appointed as Work-Charged Helper under the Executive Engineer, F.M.

Division, Rengali Dam Project and on 21.5.1981 he was promoted to the

post of Wireman Grade-III. While working as such, he was transferred
2

and posted as such in the year 1989 under the Executive Engineer,

Rehabilitation Division, S.I. Project, Laxmiposi. On 25.09.1990, he was

given adhoc promotion to the post of Electrician Grade-II which was

extended from time to time and finally on 02.12.1993 he was promoted as

Electrician Grade-II under the Work Charged establishment. It is further

stated by the petitioner that in the year 1965 the State Government in the

Finance Department passed a resolution as per Annexure-2 deciding to

absorb Work-Charged employees in corresponding posts created in the

regular establishment of different Departments of the Government,

subject to certain conditions. Again on 30.04.1983, the Government

issued letter (Annexure-3) to the Engineer-in-chief, Irrigation reiterating

the general principles of conversion of posts in the Work-Charged

establishment to regular establishment where the posts in the Work-

Charged establishment continued for five years from the date of creation

and were likely to continue in future for works of permanent nature.

Pursuant to directives of the Supreme Court, the High Court and the

Administrative Tribunal, the Government also passed a resolution on

15.05.1997 (Annexure-5) formulating certain norms and conditions to

absorb workers like the petitioner under regular establishment. In spite of

such resolutions passed from time to time, the opposite parties have not

acted upon the same. It is the further case of the petitioner that while

working as Electrician Grade-II in the Work-Charged establishment, he

was retrenched with effect from 31.03.2003 as a surplus worker vide

order dated 28.3.2003 under Anenxure-6. It is alleged by him that the
3

retrenchment order has not yet been communicated to him, nor has he

received the same, and that he has not been paid one month’s pay and

retrenchment compensation or gratuity as required under Section 25-F of

the Industrial Disputes Act (in short, ‘the Act’), though in the

retrenchment order he has been asked to receive one month’s pay in lieu

of one month notice. It is also stated that the mandatory provision of

Section 25-N of the Act has also not been complied with by the opposite

parties while retrenching the petitioner. It is further stated that provision

of 25-G of the Act which lays down the principle of ‘last come first go’ has

not been followed while retrenching the petitioner, inasmuch as Work-

Charged employees, namely, Basanta Ku. Swain and Budhia Samal, who

are junior to the petitioner have been retained in service. It is also stated

that some N.M.R. employees have been retained whereas the petitioner

has been illegally retrenched, though the N.M.R. employees should have

been retrenched first.

3. The opposite parties have filed a counter affidavit wherein it is

admitted that the petitioner was appointed as Helper on 26.09.1978. It

is, however, stated that the post of Wireman is not a promotional post of

Helper. While the former involves a different nature of job for which

technical knowledge and experience is necessary, post of Helper does not

require any such thing. It is stated that though the initial appointment of

Basanta Kumar Swain as Helper was subsequent to petitioner’s

appointment as helper, while considering both of them for appointment as

Wireman, Basanta Kumar Swain was found suitable and accordingly
4

appointed as Wireman Grade-III with effect from 29.01.1981, whereas

the petitioner was appointed as Wireman Grade-III on 21.5.1981 and,

therefore, Basanta Kumar Swain became senior to the petitioner in the

gradation of Wireman Grade-III and was accordingly shown in the

common seniority list. Subsequently, though both of them were promoted

from Wireman Grade-III to Electrician Grade-II on the same day, i.e., on

02.12.1993, their seniority was maintained in accordance with the

position they were occupying in the gradation list of Wireman Grade-III.

Though the petitioner was initially given adhoc promotion to Electrician

Grade-II with effect from 25.09.1990, which was extended up to

08.06.1991, he had been degraded to the post of Wireman Grade-III.

Thereafter, he was again promoted to the post of Electrician Grade-II on

02.12.1993 along with Basanta Kumar Swain, who has accordingly been

placed above the petitioner in the gradation lists as per Annexures-D/3

and A/3. Similarly, Budhia Samal, who was appointed along with the

petitioner on the same day as Helper and also as Wireman Grade-III has

all along been shown as senior to the petitioner from the beginning and

he having also been promoted to the post of Electrician Grade-II along

with the petitioner on the same day, the previous seniority is accordingly

maintained. It is stated that the seniority lists have never been challenged

by the petitioner. With respect to the retrenchment of the petitioner, it is

stated in the counter affidavit that the retrenchment order was issued to

the petitioner asking him to receive one month’s notice pay and the

retrenchment benefits on 31.03.2003, from which date he was
5

retrenched. He was offered a Banker’s cheque dated 31.03.2003 for

Rs.1,57,976/- (Annexure-C/3) towards his retrenchment dues including

one month notice pay but the petitioner refused to accept the

retrenchment and other benefits offered in the shape of the Banker’s

cheque. Therefore, it is contended that there was no violation of

requirement of Section 25-F of the Act. It is also stated that the

Government Resolutions referred to by the petitioner were never

implemented because of the financial stringency of the State Government,

for which no post in the regular establishment was sanctioned and

created for absorption of Work-Charged employees. It is stated that

because of the financial stringency, the Government adopted austerity

measure (communicated vide letter no.10954/F dated 14.03.2001) and

decided to retrench the surplus N.M.R. and Work-Charged personnel,

who were junior in their respective category. Accordingly, opposite party

no.2 sent a list of junior surplus workers as per common seniority list of

Work-Charged employees of Major Irrigation Projects maintained by him

with instruction to retrench the surplus workmen with effect from

31.03.2003 on the basis of principle of ‘last come first go’. It is also stated

that N.M.R. workers and Work-Charged employees belong to completely

separate and distinct establishments. Seniority of employees in one

establishment cannot be counted or compared with the other

establishment. The petitioner being the junior-most surplus worker in his

category in the Work-Charged establishment, he has been retrenched.
6

Therefore, there is no violation of the principle of ‘last come first go’ and

the provision of Section 25-G of the Act.

4. Having regarded to the assertions made in the writ petition,

rejoinder affidavit of the petitioner and the relief sought for, the only

question that arises for consideration is whether the retrenchment of the

petitioner is illegal and invalid for non-compliance of the provisions of

Sections 25-F, 25-G and 25-N of the Industrial Disputes Act,1947.

5. The petitioner has asserted that he has not been given one

month notice for his retrenchment or paid wages for one month in lieu of

such notice, as required under Clause-(a) of Section 25-F of the Act, and

he has not been paid retrenchment compensation, as required under

Clause-(b) of the said Section. It is evident from the retrenchment order

(Annexure-6) that the said order was passed on 28.3.2003 retrenching the

petitioner with effect from 31.3.2003 A.N. In the said order, the petitioner

was requested to attend the office of the S.D.O on 31.3.2003 to receive

one month pay, in lieu of one month notice, and other retrenchment

dues, as admissible under Clauses-(a) and (b) of Section 25-F of the Act.

Specific assertion has been made in the counter affidavit of the opposite

parties that the retrenchment order was issued to the petitioner and he

was offered a Banker’s cheque dated 31.3.2003 for Rs.1,57,976/-, but

the petitioner refused to accept the same. Copy of the Banker’s cheque

has been filed vide Annexure-C/3. It is clear that the petitioner

deliberately avoided to receive the Banker’s cheque which had been drawn

in his favour towards one month notice pay and retrenchment
7

compensation for which no fault can be attributed to the opposite parties

for petitioner’s refusal to receive the Banker’s cheque. Therefore, it cannot

be said that the provisions of Clauses-(a) & (b) of Section 25-F of the Act

have been violated.

6. Section 25-G of the Act, which is said to have been violated by

the opposite parties in retrenching the petitioner, reads as under :

“25-G. Procedure for retrenchment- Where any
workman in an industrial establishment, who is a
citizen of India, is to be retrenched and he belongs to a
particular category of workman in that establishment,
in the absence of any agreement between the employer
and the workman in this behalf, the employer shall
ordinarily retrench the workman who was the last
person to be employed in that category, unless for
reasons to be recorded the employer retrenches any
other workman.”

The petitioner also asserts that as per policy decision of the

Government dated 10.07.2006 (Annexure-7) N.M.R. workers of a

particular category should be retrenched first before retrenchment of the

Work-Charged employee of the same category and that no worker under

Work-Charged establishment promoted to the higher grade should be

retrenched from service being a junior-most person of that grade and in

the event of necessity of such retrenchment, he shall be reverted to the

lower grade and the junior-most person in the lower grade should be

retrenched. Basing on such decision of the Government, it is contended

that Basanta Ku. Swain, who was initially junior to the petitioner when

appointed as Helper, and Budhia Samal, who was appointed on the same
8

day when the petitioner was appointed, have been retained, while the

petitioner has been retrenched. As has been seen from the counter

affidavit of the opposite parties and the common seniority list of the

Work-Charged employees, though Basanta Kumar Swain was junior to

the petitioner in the Helper grade, he was appointed as Wireman Grade-III

in January,1981 whereas the petitioner was appointed as Wireman

Grade-III in May,1981 and, therefore, in the Wireman Grade the petitioner

became junior to Basanta Swain. Similarly, Budhia Samal was appointed

along with the petitioner on the same day but he has been shown senior

to the petitioner and accordingly the seniority list was maintained. All

three of them were promoted from Wireman Grade-III to Electrician

Grade-II on 2.12.1993 and, therefore, their seniority position, as

maintained in the Grade of Wireman continued in the grade of Electrician

Grade-II. That seniority list has never been challenged by the petitioner at

any point of time and, therefore, the petitioner has been rightly treated as

the junior most in the grade of Electrician Grade-II as well as in the lower

grade of Wireman Grade-III. Therefore, it cannot be said that there is any

violation of the provision of Section 25-G of the Act or the decision of the

Government as per Annexure-7. Similarly, there is no acceptable material

that any N.M.R. employee of category of the Electrician Grade-II junior to

the petitioner has been retained while retrenching the petitioner. Besides,

the Work-Charged establishment and N.M.R. establishment being

separate and distinct, seniority in one establishment cannot be counted

vis-à-vis the seniority of employees in the other establishment. It can not,
9

therefore, be said that there has been any violation of the principle of ‘last

come first go’ in the matter of retrenchment of the petitioner.

7. Besides the plea that provisions of Section 25-F of the Act

have not been complied with, it is also contended on behalf of the

petitioner that the provisions of Section 25-N of the Act have been violated

in retrenching the petitioner. It is trite that the provisions of both the

Sections 25-F and 25-N of the Act do not apply simultaneously to an

‘industrial establishment’. The parliament has intended that where

Section 25-N applies, the application of Section 25-F should be excluded

(See 1981 LAB. I.C. 942; T. Gattaiah and others v. The

Commissioner of Labour and another). Section 25-N occurs in

Chapter-V-B of the Act, which was added by way of amendment with

effect from 05.03.1976. Section 25-K of the Act makes provision for

applicability of the said Chapter-V-B. It provides that the Chapter shall

apply to an ‘industrial establishment’ (not being an establishment of a

seasonal character or in which work is performed only intermittently) in

which not less than one hundred workmen were employed on an average

per working day for the preceding twelve months. The expression,

‘Industrial Establishment’, as referred to in Section 25-K, has been

defined in Clause (a) of Section 25-L of the Act to mean, (i) a factory as

defined in clause (m) of Section 2 of the Factories Act,1948; (ii) a mine as

defined in the Mines Act,1952, or (iii) a plantation as defined in the

Plantation Labour Act,1951.

10

For the applicability of Section 25-N, it must be shown that

the organization where the workmen are employed is an ‘industrial

establishment’ within the meaning of Section 25-L and further that such

‘industrial establishment’ must not be one of a seasonal character or in

which work is performed only intermittently and that not less than one

hundred workmen were employed on an average per working day for the

preceding twelve months, as required under Section 25-K of the Act.

There is no averment in the writ petition, nor any material

has been produced by the petitioner to show that the organization in

which the petitioner was working is an ‘industrial establishment’ within

the meaning of Section 25-L of the Act and that the establishment is not

one of seasonal character and that work therein is not performed

intermittently and further that at least hundred workmen were employed

on an average per working day for the preceding twelve months. In the

absence of any such pleading or material, it cannot be said that the

establishment where the petitioner was employed is one to which Chapter

V-B of the Act would be applicable. In such circumstances, non-

compliance, if any, of the provisions of Section 25-N of the Act does not

vitiate the retrenchment of the petitioner, since on consideration of the

contention of the petitioner we have already held that provisions of

Section 25-F of the Act have been complied with.

8. In the light of the aforesaid discussions, we find no infirmity

in the order of retrenchment of the petitioner and, therefore, the writ
11

petition is devoid of any merit and accordingly dismissed. There shall be

no order as to costs.

……………………….

B.K.Nayak,J.

L. Mohapatra, J.        I agree.


                                                 .............................
                                                  L. Mohapatra,J.


Orissa High Court, Cuttack
The    October,2010/G.Samal
 

Chirantan Sahu V vs Unknown on 8 October, 2010

Orissa High Court
Chirantan Sahu V vs Unknown on 8 October, 2010
HIGH COURT OF ORISSA : CUTTACK

CRLMC NO.2972 OF 2006

In the matter of an application under section 482' of the Criminal
Procedure Code.

Chirantan Sahu V .... .. Petitioner
--Versus-
State of Orissa .... .. Opp. Party
For Petitioner : Mr. B.B. Routray
For Opp. Party : Additional Government Advocate

PRESENT:

THE HON'BLE MR. JUSTICE IN DRAJIT MAHANTY.

Date of hearing 22.02.2010 Date of Judgment : fig/{Q '5Z&/0

I. Mahanty, J. This application under Section--482 Cr.P.C. has been filed by
the petitioner-Chirantan Sahu with a prayer to quash the proceeding
in G.R. Case No.223(A) of 2003 (Arising out of Sohela P.S. Case No. 103
of 2003) pending before the learned J .M.F.C., Sohela inter alia on the
ground that two of the co--accused persons who have faced trial for
offences under Sections.399, 402 I.P.C. and had been acquitted by the
learned Assistant Sessions Judge, Padmapur videi judgment dated
8.10.2004

in S.T. Case No.150 of 2004.

2. Mr. B.B. Routray, learned counsel appearing for the
petitioner placed reliance on a judgment of this Court in the case of
Kanhu Behera v. State of Orissa, 2005(II) OLR 386 and stated that
since no prima facie case has been made out against the petitioner
and the co-accused persons who faced trial have been acquitted,
chance of conviction of the petitioner being totally bleak, the order of
cognizance and the proceeding against the petitioner in the aforesaid
criminal proceeding pending before the J.M.F.C., Sohela may be
quashed.

3. The learned Standing Counsel appearing on behalf of the
State submitted that the petitioner though was named as a co-accused
in the F.I.R. and was also named as an accused in the charge sheet
submitted in the case, he remained as an absconder and, therefore,
did not face trial and should not be permitted to take advantage of an
order of acquittal passed in the case of co-accused persons.

4. Considering the submissions made by the learned counsel
for the respective parties and also on perusing the judgment in S.T.
Case No.150 of 2004 dated 8.10.2004, rendered by the Assistant
Sessions Judge, Padmapur, I am of the considered view that even
though an absconder ought not to be normally extended the benefit of
the judgment rendered in the case of a co-accused, but on perusing
the judgment, as noted hereinabove, it is found that, P.W.11, a Police
Sub–Inspector not only was the informant but was also the
Investigating Officer. This fact itself is adequate for the purpose of
quashing the criminal proceeding. It is well settled in law that no
police officer ought to be permitted to act both as an “informant” as
well as the “Investigating Officer”, since the rules of natural justice
clearly require that in the event of police officer become the informant,
he should not conduct the investigation into the said case, since the

said case police officer would have to give evidence as a witness in

course of trial. In this case P.W.11’s evidence and his F.I.R. as well as
the filing of charge sheet on completion of the investigation becomes
the basis of the trial.

5. Apart from the above, the trial court has taken into account
the fact that, the prosecution evidence regarding the alleged
“preparation of dacoity” is based on the alleged confession of a co-
accused, Shankar (who had faced trial) which evidence is clearly not
admissible. There exists no other evidence to show that the accused
persons were making any preparation of committing dacoity apart
from the confession of the co-accused. Reliance was correctly placed
by the learned counsel for the petitioner on a judgment of the Supreme
Court in the case of Chaturi Yadav and others v. State of Bihar,
1979 Criminal Law Journal 1090 in this regard. Further, since P.W.l1
admitted that he had first effected the seizure of iron rod and iron
pipes at the cremation ground on the alleged confession of the accused
Shankar leading to recovery of the said articles, obviously the F.I.R.
itself had not been drawn up at that point of time and, therefore, no
investigation could be said to have been taken prior to filing of the
F.I.R. Therefore, since the said co–accused Shankar was admittedly
not in the custody of police as an “accused” at the time of leading to
recovery as required under law, any recovery or confession before the
police regarding the occurrence is clearly not admissible under Section
27 of the Evidence Act.

6. Considering the aforesaid circumstances and the evidence of
the present case, I am of the considered View that no real purpose
would be served by directing the continuance of the criminal
proceeding against the present petitioner, since the chance of
conviction of the petitioner is totally bleak. Apart from the aforesaid
fact, from the judgment passed by the trial court as referred in above,

it is clear therefrom that, noprima facie case has been made out

against the petitioner for the alleged offences and the principal
accused persons who purportedly made the confession before the
P.W.11–Investigating Officer and had purportedly led to the recovery of
various material objects connected to the alleged crime have already
been acquitted, after a full fledged trial.

7. Therefore, the G.R. Case I\lo.223(A) of 2003 (Arising out of
Sohela P.S. Case No.103 of 2003) pending before the learned
J.M.F.C., Sohela is directed to be quashed against the present
petitioner-Chirantan Sahu. 0

Accordingly, the CRLMC is allowed in terms of the direction

noted hereinabove.

SON’ 1. Mo/*10»zf¢I, 17

ORISSA HIGH COURT ; CUTTACK __ P
October, gueej 2010/PKP RUE C0 V

“.7
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‘ V $3
3″:

Ashok Kumar Majhi 8:. Another vs Unknown on 5 October, 2010

Orissa High Court
Ashok Kumar Majhi 8:. Another vs Unknown on 5 October, 2010
HIGH COURT OF ORISSA: CUTTACK

WP(Cl No. 12228 of 2010
In the matter of an application under Articles 226 8:. 227 of the
Constitution of India

Ashok Kumar Majhi 8:. another .... .. Petitioners

State of Orissa 8:, others .... .. Opp.Parties

M / s Upendra Kumar Samal,
C.D.Sahoo, S.P.Patra and
M.R.Mohap'atra. ' '

For Petitioners

For Opp. Parties ' Mr. D.Panda, A.G.A.

For Intervenor Mr. Sanjit Mohan1:y,Sr.AdVocate

_______ __L-_-____

PRESENT:

TI-IE HON'BLE CHIEF JUSTICE SHRI V.GOPALA GOWDA

3.
85 77

THE HON'BLE SHRI JUSTICE INDRAJIT MAI-IAANTY.

Date of hearing: 27.9.2010 Date of Judgment:  /0 .2010

I.Mahanty, J. In the present writ petition the petitioners herein claiming

themselves to be the social workers and villagers of village Boden in the

District of Nuapada in the State of Orissa have prayed for quashing of

Notice No.248 dated 10.7.2010 issued by the Collector 82; District



Magistrate, Nuapada for settlement of India Made Foreign Liquor Off
shop (in short "IMFL Off shop") through lottery for the year 2010-11 at
village Boden.

2. Mr. U.K.0amal, learned counsel for the petitioners submitted
that a public notice Was issued by the Superintendent of iExcise of
Nuapadaion 11.11.2-009 inviting objections from public regarding the
proposal of the State Government to grant exclusive privilege for
opening of new IMFL Off shop for retail sale at village Boden and by the
said notice objections were required to be filed on or before 26.11.2009.
The period indicatedin the notice for grant of exclusive privilege was
from 1.0472010 to 31.00.2011. Pursuant to the aforesaid notice the
Chairman of Boden Panchayat Samiti, one Mr. Krushnérsingh Majhi
has submitted an objection dated 21.1 1.2009 under 4AnneXure-4 stating
therein, that the village Boden is a backward tribal area Where the local
inhabitants are fully depending upon agriculture _ and substantial
number of them are living below the poverty line. Accordingly objection
was made to the opening of IMFL [Off shop, since it was likely to cause

harm to the village people instead of their upliftment. It is' further

1 submitted that by a further letter dated 23.12.2009, the Chairman of

Boden Panchayat Samiti submitted another objection reiterating his
earlier objection and also. stating that the Boden Panchayat Samiti and

Boden Gram Panchayat had passed ,a resolution, to the effect that no



foreign liquor shop should be opened at village Boden for the benefit of
the people.

3. Mr. Samal further submitted that the public notice inviting
objection dated 11.11.2009 under Annexure-3 did not satisfy the
requirement of Section 22 of the Bihar and Orissa Excise Act, 1915
since the notice failed to specify the "locality" and the "local area" within
which the excise privilege was intended to be granted Was to be
exercised.

4. A further plea Was taken by the learned' counsel for the
petitioners that, on an earlier occasion the Collector, Nuapada had
issued public notice for opening of 'a new IMFL Off shop at village Boden
for the period from 1.04.2008 to 31.03. 2009 Vide public notice dated
5.11.2007

under Annexure-1 and since the objections were raised by
the Panchayat, the State ‘Government had decided not to open the said
IMFL Off shop during the said year; It is submitted that the very
reasons which existed for not opening an IMFL Off shop at village
Boden in the district of Nuapada for the year 2008-2009, still continue
to exist as on date and therefore, the rejection of the objection raised by
the Chairman of the Panchayat Samimit, Boden under Annexures-4
and and the decision to go ahead for grant of exclusive privilege by
opening an IMFL Off shop at village Boden for the year 2010-11, vide

notice dated 10.07.2010 under Annexure–6 is liable to be quashed.

5. Mr. Samal further contended that assuming for the sake
argument that an IMFL Off shop was required to be opened at village
Boden, even then, the decision of the State’ Government to settle the
said IMFL Off shop through “lottery” was not in consonance Section
29(2)(a) of the Bihar and Orissa Excise Act, 1915, since, it was
stipulated therein that the State Government may grant -exclusive
privilege either by “auction” or by calling “tender” or otherwise as the
State Government may, in the interest of excise revenue by general or
special order dir’ect..He further submits that there was no necessity for
deciding to open an IMFL shop at Boden through “lottery”, as, holding of
a lottery was not specifically permissible in terms of the aforesaid

statutory stipulation under the Bihar 85 Orissa Excise Act, 1915.

” 6. Mr. D.Panda, learned Additional Government Advocate

appearing for the State responded to the aforesaid contentions by
stating at the outset that, the State had complied with all the
procedural requirements prescribed under Bihar & Orissa Excise Act
for the purpose of opening of an IMFL Off shop at village Boden.

7. Both, the learned counsel appearing for the State as well as
Mr. Sanjit Mohanty learned Senior Advocate appearing for the
intervenor submitted that the petitioners have no locus standi to file the
present writ petition as “public interest litigation”, since the petitioners

have never filed any objection to the opening of an IMFL Off shop at

village Boden. Apart from the above, the learned counsel for the
intervenor submitted that, the objection annexed as Annexure-4 dated
21.11.2009 filed by Sri Krushna Chandra Majhi, Chairman -of Boden

Panchayat Samiti was duly considered and an enquiry was carried out

by the Officers of Excise Department at the Collectorate and found no

merit in the said objection. Apart from this Mr. Mohanty, learned
counsel for the intervenor submitted that the self-same objector. i.e’.,
Chairman of the Boden Panchayat Samiti had subsequently by letter
dated 23.12.2009 addressed to the Collector & District Magistrate,
Nuapada admitting the requirement of an IMFL Off shop and suggesting
that such IMFL Off shop retail licence may be granted. 0 I V

8. Mr. Panda,’ learned Addl. Government Advocate, placed
reliance on the averments made by opposite parties 3 and 4 in the
counter affidavit filed on their behalf by the Superintendent of
Excise, Nuapada and in particular the factual contention raised in
paragraphs–6 and 8. Relying on the same learned Additional
Government Advocate submitted that, it is a fact that the IMFL Off shop
at Boden was not sanctioned for the year 2008-09 apart from three
other proposed new IMFL shops at Hatibandha, Dharambandha and
Udiyanbandh of the self–same district for preservation of public peace.
However, as per the policy decision of the Government for the year

2009-10, two numbers of new IMFL Off shops namely, Lakhna and

Boden were proposed in the district. It is further averred that the
objection filed by the Chairman of the Panchayat Samiti, Boden under
Annexure-4 did not contain any resolution of the Gram Panchayat and
the objections raised was duly enquired into by the Inspector of Excise
of Nuapada and the said objection letter was duly sent to the State
Government along with the views of the Collector after due enquiry
along with the proposal vide letter No. 88 dated 15.3.2010′. In’ so far as
further alleged objection dated 23.12 2009 under Annexure-5 of the
Chairman of Boden Panchayat Samiti is concerned, learned Additional
Government Advocate submitted that, the said objection having been
admittedly sent after 26.11.2009, i.e. last date for receipt of objection,__
was not considered since it was received after the last date fixed -for
receipt of objection.

9. Mr. Panda further ‘submitted that the intention’ of the State
Government behind granting permission for opening of an IMFL [Off
shop at village Boden Was not merely to raise excise revenue of the
State but was also aimed at stopping and/ or preventing illicit
distillation/ boot legging in the local area and therefore, in the public
interest it was required to open the IMFL Off shop for encouraging
legitimate business and to assure unadulterated product to the
consumers. ‘I-le, therefore, submitted that the decision of the State

Government to open an IMFL Off shop at Boden was not only limited to

protect the interest of revenue of the State but also to protect the
interest of public health and safety and therefore, objection raised
under Annexure-4 was not justified. G

10. Mr. Sanjit Mohanty, learned Sr. Advocate appearing for the
interVenor- Ghanashyama Meher submitted that, the public notice
inviting public objection under Annexure-3 had duly. complied with the

requirement of the Section \22/of the Bihar and-Orissa Excise Act read

A with Rules 3 82; 4 of the Orissa Excise (Exclusive Privilege) Foreign

Liquor Rules, 1989. Learned counsel further submitted that by way of _

an g amendment in the year 2005 i.e. on 29.3.2005 the State
Government amended the Orissa Excise (Exclusive Privilege) Foreign
l.,iquor Rules, 1989. and incorporated a new rule therein numbered as
Rule . 3-A in which it was stipulated: “Notwithstanding anything
contained in rule-3, the Collector of the district shall fix the local area of

the shop coterminous with the location of the shop.”

10.1 Mr. Mohanty, learned Sr. Advocate further submittedthat the

contention of the petitioners that grant of exclusive privilege through

“lottery” was contrary» to the requirements of Section 29 (2)(a) of the
Bihar & Orissa Excise Act, 1915 is wholly misconceived. It’is submitted
that the settlement for grant of rights of exclusive privilege by the State
Government was permissible not only through “auction” or by calling

upon “tenders” or otherwise as the State Government may, in the

interest of excise revenue, by general or special order, direct. Learned
counsel further submitted that pursuant to such authority being vested
in the Government, the State of Orissa issued an “Order by the Revenue
85 Excise Department on 23.4.1990” which was published in the
extraordinary gazette issue No. 538 of the Orissa Gazette, dated the
23rd April, 1990, which has since been amended from time to time. The
learned Senior Counsel placed reliance on an amendment brought

about to the said order of the State Government of ‘ Orissa vide

amendment dated 28.4.2005 whereby, in specific terms and permission ,

was granted for ‘settlement of IMFL Off shops “through a lottegg

rocedure”. In terms of such procedure the State Government was duly
empowered to grant such exclusive privilege through lottery system in
certain cases. Notice of the Court was also drawn to Form-A to the
aforesaid amendment of the Government order which contains the

description inviting application for settlement of IMFL Off shop through

‘ “lottery” and particularly Clause–3(vii) of the said Form-A”, in which it

has been noted:

“The “State Government will not be responsible
for providing the place for location of shops and it would
be responsibility of the privilege holder to arrange
suitable place and carry on the privilege granted to him.

The place so arranged shall be free from objection from

the public.”

1 1. Mr. Mohanty further drew the attention of the Court to Form-
B of the aforesaid amendment of the Government order and stated that,
the intervenor and forty–one other individuals had applied for grant of
licence for opening of IMFL Off shop at village Boden through “lottery”
system and accordingly, the intervenor was found to be successful in
such lottery and became entitled for grant of such exclusive privilege.
Mr. Mohanty further submitted that, no objection against grant of
exclusive privilege by “lottery” ought to be entertained, since the same is
in consonance with the Government Order issued for such purposes
and as amended from time to time as quoted hereinabove. He further
submitted that in the present case no challenge has been made by the
petitioners to the Order of the State Government dated 23.04. 1990’or to
the subsequent amendments including. the amendment dated
28.04.2005. Accordingly, he submitted that since no challenge has
been made to the above, petitioners’ objection against grant of exclusive
privilege through “lottery” is wholly baseless and deserves to be rejected
out right. It is further submitted that even though; the intervenor was
found successful in the lottery held for the purpose of identification of
an exclusive privilege holder for an IMFL Off shop at village Boden in
the district of Nuapada since 23.07.2010 due to an interim order
passed by this Court in the present proceeding, the intervenor has not

been able to operate the same and prays for dismissal of the Writ

10

petition and vacation of the interim orders in order to operate exclusive
privilege. I

12. Mr. Samal, learned counsel for the _petitioners placed reliance
on the judgment of this Court in the case of Sarat Kumar Sahu 82;
another v. Collector, Cuttack and another, 73 (1992) CLT 834(para-

6) in order to support his contention that the “locality” as well as “local
area”, needs to be declared in the public notice. We are of the
considered View that the aforesaid judgment would have no application

to the present case, since an amendment was made’ on 29.03.2005 to

‘9 the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989,

introducing Rule–3-A’. thereof. In View of such amendment to the

aforesaid rules, which came into force subsequent to the aforesaid
decision referred hereinabove and on perusing Annexure–3, We are of
the considered view that the said public notice satisfies the
requirements of 1989 Rules referred to herein above. Hence,” the

judgment relied upon by the petitioners is of no assistance. The

petitioners also placed reliance on a judgment of the Honfble Supreme.

Court in the case of S.N. Mukherjee v. Union of India, AIR 1990 SC
1984, in particular, paragraphs 38 and 39 thereof, in order to
substantiate his stand that, the “reasons” need to be recorded While

rejecting an objection made to opening of an IMFL Off shop.

11

13. In this regard, reliance was placed by the learned Senior
Counsel for the intervenor on the judgment of the Hon’ble Supreme

Court in the case of Mohinder Singh Gill and another V. The Chief

Election Commissioner, New Delhi, AIR 1978 SC 851 and submitted

that the “reasons for rejecting’ objection raised by the Chairman of
Boden Panchayat Samiti are available in the records of the proceedings
of the Collector/ State Governmentibasing uiponithe enquiry made by
the Collector through the Excise Inspector and therefore, reasons being

in existence in the records of the State can also be ‘referred to and

therefore this contention of the petitioners is rejected.

14. In this connection it would be I appropriate to quote the
relevant portions from the inquiry report submitted by the Inspector of

Excise, Nuapada. They are extracted below:

“The villagers of Boden G.P. have filed objection
petition praying for not opening I.M.F.L. shop at Boden. On
my inquiry thoroughly and I have ascertained that the Boden
is a block headquarters having floating population as about 4
to 5 thousand per day. There is also no any kind of l.M.F.C.
shops at Boden Block are and alsono such I.M.F.L. shop near
about 30 Kms distance from Boden. There is also feasibility
for the opening of a I.M.F.L. shop at Boden for the interest of
Government revenue and to avoid future complicacy.

, The Chairman, Panchayat Samit, Boden has filed ‘
his objection in his letter No. 282 dated 27.11.09 not to open
I.M.F.L. shop at Boden. On inquiry of the petition, I have
physically found that the objection filed by him is quite
baseless. Also in the past, I have personally along with my
Superintendent, both of us went to his native place on
09.08.09 and contacted with him in this respect. He has

12

submitted Written statement before us stating that he has got
no objection in case of opening of new I.M.F.L. shop there.”

15. Apart from the above, learned Additional Government
Advocate also-referred to para-8 of the counter affidavit vvhich provide
the reasons for which the State Government rejected the /objection
raised by the objectors. Accordingly, after perusing the records of the
case provided to us by the learned counsel for the ‘State, we find that
adequate andcogent reasons exist in the record to justify the decision
of the State Government to open an IMFL Off shop at vfllage Boden in
the district of Nuapada and find no «merit in the contention ‘raised by
the petitioners. ‘ A

16. Therefore, we find no merit in the present Writ petition and
accordingly, direct dismissal of the same and vacate all the interim

orders. In view of the judgment passedtoday in this writ petition, all the

misc. cases stand disposed of. ‘ , ,_ V V _m

j .9 “‘VlC9’l/\4arA»lyJ,T.’

94 ~ C/CL’€(s’ 7v247Due~

MAW.

my

V.Gopala Gowda, C.J. I agree.

”’\*6”””

ORISSA HIGH COURT, CUTTACK
W October,20lO /AKD