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 . MAY - 2020 Pages : 1 to 160 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. ADVOCATE GENERAL Shri ASHOK KUMAR PARIJA, B.Com., LL.B. REGISTRARS Shri SATYA NARAYAN MISHRA, 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 All Odisha Lawyers Association -V- The Odisha State Bar 1 Council & Anr. Ashok Kumar Mishra -V- Industrial Development CORP. of 108 Orissa Ltd. & Ors. Bhaskar Bariha-V- State of Odisha. 114 Bijaya Kumar Ragada -V- State O f Odisha & Ors. 61 Dhananjay Charan Dey & Ors. -V- State of Orissa and Ors. 84 Dr. Keshaba Ch. Panda -V- Sambalpur University & Ors. 32 Kalpana Bal -V- State Of Odisha & Ors. 143 Kamarami Rama & Ors. -V- State of Odisha. 52 M/s Kalinga Hatchery (P)Ltd. & Anr. -V- Regional Director, ESI 66 CORP. & Ors. Mahendra Kumar Parida -V- State of Odisha. 15 Mamata Behera -V- State of Odisha & Ors. 98 Neelachal Ispat Nigam Ltd. & Anr. -V- State of Orissa & Ors. 57 Pradeepta Mohanty & Ors.-V- Rourkela Development authority 20 & Ors. Pravakar Jayasingh & Ors. -V- State Of Odisha & Anr. 129 Santosh Maharana -V- State of Odisha. 126 Shiba Hareka -V- State of Odisha. 49 Sk. Talim ali -V- Hindustan Petroleum Corporation Ltd. & Ors. 150 iv ACTS Acts & No. 1973-02 Code of Criminal Procedure, 1973 1950 Constitution of India, 1950 1947-14 Industrial Disputes Act, 1947 1860-45 Indian Penal Code, 1860 1950- 23 Orissa Municipal Act, 1950 v S U B J E C T I N D E X PAGE CODE OF CRIMINAL PROCEDURE, 1973 – Section 313 – Accused statement – Initially defence case was denial but during the accused statement, accused admitted the incriminating material against him – Whether such admission can be taken into consideration? – Held, once the prosecution has proved the charge to the hilt from the evidence adduced by it, the consideration of the statement recorded U/s.313 Cr.P.C is permissible within the scope of Section 313(4) of the code. Santosh Maharana -V- State of Odisha. 2020 (II) ILR-Cut…… 126 Section 31(1) – Punishment of Two life imprisonments – Whether both can run concurrently? – Held, Yes. (2015 (2) S.C.C. 501, O.M. Cherian @ Thankachan Vrs. State of Kerala and Ors. Followed). Santosh Maharana -V- State of Odisha . 2020 (II) ILR-Cut…… 126 CRIMINAL APPEAL – Offence U/s.302 of IPC – In the trial, evidence of all the prosecution witnesses recorded but the evidence of investigating officer could not be recorded inspite of issuance of process in various ways – Evidence of I.O closed – Trial Proceeded – Conviction order passed – Order of conviction challenged on the ground of non-examination of investigating officer – Effect of such non-examination discussed – Held, when material contradictions in the evidence of the witnesses could not be proved on account of non-examination of the I.O and the appellant has been seriously prejudiced for such non-examination in bringing many more relevant facts and also for non-production of the weapon of offences either before the vi doctor or in court, non-production of chemical examination report in court, in our humble view, it is a fit case where the appellant is entitled to the benefit of doubt – In the result, jail criminal appeal is allowed and order of conviction set aside. Bhaskar Bariha-V- State of Odisha. 2020 (II) ILR-Cut…… 114 CRIMINAL APPEAL – Offence U/s.302 of IPC – In the trial, evidence of all the prosecution witnesses recorded but the evidence of investigating officer could not recorded inspite of issuance of process in various ways – Grant of forty seven adjournments when the appellant is languishing in custody – Evidence of I.O closed – Right to speedy trial pleaded – Held, in the entire blame game goes to the prosecution and the appellant is in no way responsible for that – Direction issued to take departmental action against the erring officer. Bhaskar Bariha-V- State of Odisha. 2020 (II) ILR-Cut…… 114 CRIMINAL TRIAL – Offence under Section 302 of IPC – Conviction – Conviction based on the evidence of a child eye witness – It transpires that the evidence of child witness P.W.4 is not free from material contradiction – Her credibility is doubtful – She did not know Oriya language for which an Interpreter was appointed, but there is no material preserved in the lower court record that the questions put to her to test competency was also undertaken through the process of interpreter – As the evidence is not cogent and clear, P.W.4 is found wholly unreliable – Held, the conviction based upon such testimony is not sustainable in the eye of law. Kamarami Rama & Ors. -V- State of Odisha. 2020 (II) ILR-Cut…… 52 vii CONSTITUTION OF INDIA, 1950 – Arts.226 & 227 – Termination of the contract on the ground as fraud – Plea of violation of natural justice raised – Necessity of the compliance of natural justice, where fraud is committed? – Held, there is no legal requirement to observe the rule of natural justice while terminating the contract if there is a prima facie case of adoption of fraudulent means or misrepresentation. Sk. Talim Ali -V- Hindustan Petroleum Corporation Ltd. & Ors. 2020 (II) ILR-Cut…… 150 Articles 226 and 227 – Writ petition in the nature of PIL challenging the decision of the State Govt., making Aadhaar card, the only mode of identification for registration of migrant workers during COVID-19 pandemic period – Prayer to direct the State to accept other ID proofs, such as Voter ID, Ration Card, MGNREGS ID Card etc. and in absence of any of them, the identification by the Sarpanch of Gram Panchyayat concerned attesting the identity of such migrant labourers, as valid proof for registration as an alternate to Aadhaar Card for registration in COVID-19 Odisha State Portal – Prayer accepted – Held, possession of Aadhaar Card and its number cannot be the sole criteria for registration of any migrant labourer and any other citizens entering the State of Odisha for the purpose of registration with State Portal or with the Gram Panchayat/Urban Local Bodies. Mahendra Kumar Parida -V- State of Odisha. 2020 (II) ILR-Cut…… 15 Articles 226 and 227 – Writ jurisdiction – Exercise of – Writ petition – Challenge is made to the instructions issued by Bar Council of India and Odisha State Bar Council with regard to viii constitution of interim Committees for Bar Associations during COVID-19 pandemic – Competency of BCI and OSBC for issuing such instruction questioned – Court urged to direct holding of election of the Bar Associations by observing the COVID-19 guidelines – The question arose as to whether such a writ of mandamus/direction can be given during such situation? – Held, no, High Court in its discretion refuse to issue a writ even if there is infraction of any law – Scope thereof – Discussed. All Odisha Lawyers Association -V- The Odisha State Bar Council & Anr. 2020 (II) ILR-Cut…… 1 Articles 226 and 227 – Writ petition in the nature of PIL challenging the decision of the State Govt. making Aadhaar card, the only mode of identification for registration of migrant workers during COVID-19 pandemic period – Prayer to direct the State to accept other ID proofs, such as Voter ID, Ration Card, MGNREGS ID Card etc. and in absence of any of them, the identification by the Sarpanch of Gram Panchyayat concerned attesting the identity of such migrant labourers, as valid proof for registration as an alternate to Aadhaar Card for registration in COVID-19 Odisha State Portal – Prayer accepted – Held, possession of Aadhaar Card and its number cannot be the sole criteria for registration of any migrant labourer and any other citizens entering the State of Odisha for the purpose of registration with State Portal or with the Gram Panchayat/Urban Local Bodies. Mahendra Kumar Parida -V- State of Odisha. 2020 (II) ILR-Cut…… 15 Articles 226 and 227 read with Section 482 and 483 of the Criminal Procedure Code, 1973 and the inherent power over the civil matters under Section 151 of the Civil Procedure Code, 1908 – COVID 19 pandemic – Lockdown situation – ix Working of High Court, other