THE INDIAN LAW REPORTS (CUTTACK SERIES, MONTHLY) Containing Judgments of the High Court of Orissa and some important decisions of the Supreme Court of India. Mode of Citation 2020 (II) I L R - CUT . AUGUST - 2020 Pages : 481 to 656 Edited By BIKRAM KISHORE NAYAK, ADVOCATE LAW REPORTER HIGH COURT OF ORISSA, CUTTACK. Published by : High Court of Orissa. At/PO-Chandini Chowk, Cuttack-753002 Printed at - Odisha Government Press, Madhupatna, Cuttack-10 Annual Subscription : 300/- All Rights Reserved. Every care has been taken to avoid any mistake or omission. The Publisher, Editor or Printer would not be held liable in any manner to any person by reason of any mistake or omission in this publication ii ORISSA HIGH COURT, CUTTACK CHIEF JUSTICE The Hon’ble Shri Justice MOHAMMAD RAFIQ, M.Com., LL.B. PUISNE JUDGES The Hon’ble Justice KUMARI SANJU PANDA, B.A., LL.B. The Hon’ble Shri Justice S.K. MISHRA, M.Com., LL.B. The Hon’ble Shri Justice C.R. DASH, LL.M. The Hon’ble Shri Justice BISWAJIT MOHANTY, M.A., LL.B. The Hon’ble Shri Justice Dr. B.R. SARANGI, B.Com.(Hons.), LL.M., Ph.D. The Hon’ble Shri Justice DEBABRATA DASH, B.Sc. (Hons.), LL.B. The Hon’ble Shri Justice SATRUGHANA PUJAHARI, B.A. (Hons.), LL.B. The Hon’ble Shri Justice BISWANATH RATH, B.A., LL.B. The Hon’ble Shri Justice S.K. SAHOO, B.Sc., M.A. (Eng.&Oriya), LL.B. The Hon’ble Shri Justice PRAMATH PATNAIK, M.A., LL.B. The Hon’ble Shri Justice K.R. MOHAPATRA, B.A., LL.B. The Hon’ble Shri Justice Dr. A.K.MISHRA, M.A., LL.M., Ph.D. The Hon’ble Shri Justice BIBHU PRASAD ROUTRAY, LL.B. The Hon’ble Shri Justice SANJEEB KUMAR PANIGRAHI, LL.M. The Hon’ble Miss Justice SAVITRI RATHO, B.A., (Hons.), LL.B. ADVOCATE GENERAL Shri ASHOK KUMAR PARIJA, B.Com., LL.B. REGISTRARS Shri MALAYA RANJAN DASH, Registrar General Shri RAJENDRA KUMAR TOSH, Registrar (Administration) Shri LALIT KUMAR DASH, Registrar (Judicial) iii N O M I N A L I N D E X PAGE A.S. Ananya Pradhan -V- Government of India & Ors. 551 Ajay Bada Jena -V- Commissioner of Bhubaneswar Municipal 497 Corporation & Ors. All Orissa State Bank Officers Housing Co-Operative Society State 611 of Odisha & Ors. Bidyulata Swain @ Saraswati Swain -V- State Of Orissa 509 Chinmayee Jena @ Sonu Krishna Jena -V- State of Odisha & Ors. 514 Gopinath Sahu & Ors. -V- State of Odisha & Ors. 486 Gulia Majhi -V- State of Odisha. 596 Iswar Tiwari -V- State of Odisha. 647 Jagamohan Kanhar -V- State of Orissa. 572 Jitendranath Patnaik -V- State of Odisha (Vig.) 634 Nihar Ranjan Tripathy -V- State of Odisha & Ors. 532 Prasana Kumar Behera -V- State of Orissa. 565 Santosh Kumar Parida -V- Narayan Chandra Dash & Ors. 629 Sunil Kumar Mohanty -V- Kalahandi Anchalika Gramya 581 Bank & Ors. Tapan Jyoti Bariha & Ors.-V- State Of Odisha & Ors. 481 iv ACTS & RULE Acts & No. 1950 Constitution of India, 1950 1947-14 Industrial Disputes Act, 1947 1860-45 Indian Penal Code, 1860 1957-67 Mines and Minerals (Development & Regulations) Act, 1957 1985-61 Narcotic Drugs and Psychotropic Substances Act, 1985 1963-2 Odisha Co-operative Societies Act, 1962 Rule : Orissa Civil Service (Pension) Rules, 1992 v S U B J E C T I N D E X PAGE CIVIL PROCEDURE CODE, 1908 – Order 26 Rule 09 – Appointment of survey knowing Commission – Dispute with regard to construction of boundary wall – Order of trial court challenged on the ground that, trial court has deferred the hearing of the petition till closure of the evidences from both the parties – Appropriate stage to appoint /depute the survey knowing commission – Held, the court before whom the suit is pending is in the best position to determine at what stage of the suit a commission, if any, is to be issued – The decision taken by the court before whom the suit is pending, either refusing or granting the prayer for issuance of commission, or for that purpose deferring consideration of such prayer, should not be interfered with lightly unless it is arbitrary or there is patent illegality or material illegality in the impugned order. Santosh Kumar Parida -V- Narayan Chandra Dash & Ors. 2020 (II) ILR-Cut…… 629 CONSTITUTION OF INDIA, 1950 – Article 16 – Provisions under – Advertisement or prospectus for admission/recruitment – Terms and conditions – Some changes were made in terms and conditions after selection process was started without notice – Whether permissible under law? – Held, no, it amounts to violation of Article 16 of the Constitution of India – Reasons indicated. vi A.S. Ananya Pradhan -V- Government of India & Ors. 2020 (II) ILR-Cut…… 551 Articles 226 and 227 – Disciplinary Proceeding – Dismissal of Bank Employee – Order of dismissal also confirmed by the Appellate Authority – Interference by the High Court – Scope – Discussed. Sunil Kumar Mohanty -V- Kalahandi Anchalika Gramya Bank & Ors. 2020 (II) ILR-Cut…… 581 Articles 226 and 227 – Writ petition – Challenge is made to a decision of the State in Excise Department imposing a condition – A common question of law arose as to whether the Government of Orissa in its Department of Excise can insist on furnishing Bank Guarantee, instead of Solvency certificate, for grant or renewal of Excise Licenses in respect of IMFL ‘ON’ Shops/IMFL ‘OFF’ Shops, Beer Parlour ‘ON’ shops, CL Shops/OS Shops, retail vend of IMFL, country spirit, fermented Tari, Pachwai and Bhang etc. – Held, no – Reasons indicated. Gopinath Sahu & Ors. -V- State Of Odisha & Ors. 2020 (II) ILR-Cut…… 486 vii Articles 226 and 227 – Writ petition (PIL) – Direction is sought for to stop construction of a bridge and to construct the same on the alternative site – Core question as to whether Court in exercise of its power of judicial review would be justified in quashing the decision in selecting a particular site for construction of a bridge which essentially lies in the policy domain of the State Government? – Held, No. Tapan Jyoti Bariha & Ors.-V- State Of Odisha & Ors. 2020 (II) ILR-Cut…… 481 Articles 226 and 227 – Writ petition in the nature of public interest litigation – Pleadings and prayer in the writ petition – Held, should be based on correct fact supported by materials – In absence thereof – Effect of – Indicated. Ajay Bada Jena -V- Commissioner of Bhubaneswar Municipal Corporation & Ors. 2020 (II) ILR-Cut…… 497 Articles 226 and 227 – Writ petition in the nature of public interest litigation – Pleadings and prayer in the writ petition – Held, should be regulated properly to avoid any misuse. viii Ajay Bada Jena -V- Commissioner of Bhubaneswar Municipal Corporation & Ors. 2020 (II) ILR-Cut…… 497 Articles 226 and 227 – Writ petition in the nature of Habeas Corpus seeking recovery of partner and making serious allegations of violation of the constitutional rights under Articles 14 and 21 – Self determination of gender and self-expression – Whether falls within the realm of personal liberty guaranteed under the Constitution – Held, yes. Chinmayee Jena @ Sonu Krishna Jena-V- State of Odisha & Ors. 2020 (II) ILR-Cut…… 514 CRIMINAL TRIAL – Injuries on the person of the accused – No explanation by the prosecution – However no question have been asked to prosecution witnesses to that effect – Effect on the prosecution case – Held, there was no necessity on part of the prosecution to explain such injuries when no question have been asked to the eye witness to that extent – Further the evidence of the eye witnesses are clear and cogent. Gulia Majhi -V- State of Odisha. 2020 (II) ILR-Cut…… 596 ix CRIMINAL TRIAL – Imposition of sentence – Various circumstances – Duty of the Court – Discussed. Gulia Majhi -V- State of Odisha. 2020 (II) ILR-Cut…… 596 CRIMINAL TRIAL – Offence under sections 324 & 326 of IPC – Conviction – Appeal is abetted against appellant no.1 – Discrepancies/contradictions in statements of PWs and not tallied with the statements in F.I.R – Injuries on the accused persons not been explained properly – Held, the conviction and sentence set aside. Prasana Kumar Behera -V- State of Orissa. 2020 (II) ILR-Cut…… 565 CRIMINAL TRIAL – Right of private defence – Meaning and definition – Indicated. Gulia Majhi -V- State of Odisha. 2020 (II) ILR-Cut…… 596 CRIMINAL TRIAL – Minor discrepancies in the statement of the eye witness with reference to their previous statement before the police – Whether it is fatal to x the prosecution case? – Ans. – No. – Held, minor discrepancies in the statements of witnesses as given in court vis-a-vis their previous statement before police cannot be the reason to discard the case of the prosecution such discrepancies are natural as against parrot like version of the witnesses – It cannot be lost site of the fact that the eye witnesses gave their evidence in court almost a year after the statement were recorded by the investigating officer – Such discrepancies are bound to occur for variety of reasons, for instance lack of education, social background, nature of witnesses, duration of their observation and lapse of time when the witnesses are called upon to give their evidence in court after the incident occurred. Gulia Majhi -V- State of Odisha. 2020 (II) ILR-Cut…… 596 INDIAN PENAL CODE, 1860 – Section 302 – Offence under – Murder of eight years old son by mother – Mother made her son sat on her lap and dealt blows by ‘Trisul’ – Conviction by court below – Plea of benefit under section 84 of IPC for insanity pleaded – Evidence of D.W.1- Jail Doctor has categorically stated that on the next day of the incident he examined the accused inside the jail and had seen abnormal behavior and such behavior started improving after receiving treatment – D.W.2- Psychiatric Specialist of the jail also testified and found that the accused was talking to her-self, screaming and was not taking food – Accused was suffering from schizophrenia which means gross deviation of thinking, perception and behavior and a person could not understand rationally – xi The evidence of D.W.1 and D.W.2 clearly proves that the accused was suffering from medical insanity and was unable to know the nature of the act – Held, trial court has committed error in not appreciating the evidence of D.W.1 and D.W.2 in the proper perspective – Conviction set aside.