THE INDIAN LAW REPORTS (CUTTACK SERIES) Containing Judgments of the High Court of Orissa and some important decisions of the Supreme Court of India. Mode of Citation 2018 (II) I L R - CUT . JULY - 2018 Pages : 1 to 192 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 VINEET SARAN , B.A., LL.B. PUISNE JUDGES The Hon’ble Shri Justice INDRAJIT MAHANTY, LL.M. The Hon’ble Justice KUMARI SANJU PANDA, B.A., LL.B. The Hon’ble Shri Justice S.C. PARIJA, 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 Dr. A.K. RATH, LL.M., Ph.D. 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 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 SUJIT NARAYAN PRASAD, M.A., LL.B. The Hon’ble Shri Justice K.R. MOHAPATRA, B.A., LL.B. The Hon’ble Shri Justice J. P. DAS, M.A., LL.B. The Hon’ble Shri Justice Dr. D.P. CHOUDHURY, B.Sc., LL.M., Ph.D. ADVOCATE GENERAL Shri SURYA PRASAD MISRA, B.Sc., LL.B. iii N O M I N A L I N D E X PAGE Bauribandhu Mangaraj -V- State of Orissa & Ors. 54 Bhabeswar Rana -V- State of Odisha (Vig.) 184 Bhagirathi Mishra(Since Dead) through Lrs. & Ors.-V- 127 Commissioner-Cum-Secy, (S.& M.E), Govt. of Odisha & Ors Bhabagrahi Patra -V- State of Orissa. 190 Bhikari Naik & Anr. -V- State of Odisha 40 Biswanath Dixit & Ors. -V- Kothabandhu Pujapanda & Anr. 88 Borisa Padra & Anr. -V- Eluteria Nayak 92 Dibya Jyoti Nanda -V- Central Board of Secondary-Education (CBSE) & Anr. 16 Ganeswar Rout -V- Collector-Cum-Chairman, Dist. Red Cross Branch, 176 Balasore & Ors. Harekrushna Dash -V-Sadasiva Dash 103 Hiraram Gond -V- State of Orissa. 35 Keda Behera & Anr.-V- State of Odisha. 45 Kishan Rao -V- Shankargouda 5 M/s. Premium Serums & Vaccines Pvt.Ltd. & Anr.-V-State of Odisha & Ors. 23 M/s. Radha gobinda foods and Bevverages (PVT.) LTD -V- Central Electricity 162 Supply Utility of Odisha & Ors. Mani Tirumala Projects Pvt. Ltd.-V- Mrutunjay Pattanayak & Anr. 167 Manoranjan Samal -V- State of Orissa (Vig.) 146 Narsing Satnami -V- Collector, Nuapada & Ors. 132 Natha Raksha -V- State of Orissa. 159 P. Srichandan -V- State of Odisha. 187 Pruthweeraj Patnaik (Dead) and after him his L.Rs.-V- State of Odisha & Ors. 71 Ramesh Chandra Naik & Ors. -V-State of Orissa. 134 State of Odisha & Ors.-V- Managing Committee of B.B.C. 98 Vidyapitha, Totapada Suchitra Bal -V- State of Odisha & Ors. 90 Sukadev Sahoo -V- Benga Dibya & Anr. 95 iv Supriti Mohanty-V- State of Odisha & Ors. 111 Tarun Mohanty -V- State of Odisha & Ors. 12 U.P.P.S.C., Through its Chairman & Anr. -V- Rahul Singh & Anr. 1 Union of India & Ors. -V- Bishnu Charan Mallick 32 ACTS Acts & No. 1950 Constitution of India, 1950 1973-2….. Code of Criminal Procedure, 1973 1908-5….. Code Of Civil Procedure, 1908 1986-68.... Consumer Protection Act, 1986 1986-29…. Environment (Protection) Act, 1986 1956-78…. Hindu Adoption & Maintenance Act, 1956 1860-45…. Indian Penal Code, 1860 1881-26…. Negotiable Instruments Act, 1881 1951-1…... Orissa Estate Abolition Act, 1951 1960-16…. Orissa Land Reforms Act, 1960 1988-49…. Prevention Of Corruption Act,1988 RULES:- 1. Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 v S U B J E C T I N D E X PAGE ACADEMIC QUESTION – Extent and power of the Court to interfere in matters of academic nature – Held, t he Constitutional Courts must exercise great restraint in such matters and should be reluctant to entertain a plea challenging the correctness of the key answers as Judges cannot take on the role of experts in academic matters – Unless, the candidate demonstrates that the key answers are patently wrong on the face of it, the courts cannot enter into the academic field, weigh the pros and cons of the arguments given by both sides and then come to the conclusion as to which of the answer is better or more correct – When there are conflicting views, then the court must bow down to the opinion of the experts – Judges are not and cannot be experts in all fields and, therefore, they must exercise great restraint and should not overstep their jurisdiction to upset the opinion of the experts. U.P.P.S.C., Through its Chairman & Anr. -V- Rahul Singh & Anr. 2018 (II) I.L.R. Cut……... 1 ACADEMIC QUESTION – Petitioner appeared in NEET examination conducted by the CBSE for admission in MBBS Course – After publication of result, the petitioner found error of not awarding mark to a correct answer – Reason stated that it was an error by computer – Whether court can interfere in such a situation – Held, Yes. Dibya Jyoti Nanda -V- Central Board of Secondary-Education (CBSE) & Anr. 2018 (II) I.L.R. Cut……... 16 CIVIL PROCEDURE CODE, 1908 – Section 96 – First Appeal - The scope of interference by appellate court – Indicated. Sukadev Sahoo -V- Benga Dibya & Anr. 2018 (II) I.L.R. Cut……... 95 Order 7 Rule 3 – Suit for declaration of title over the suit land and for declaration that the patta, if any, issued in favour of the defendants is null and void – Claim based only on the basis of Adhikar Patra given by Marikote Math – Title of Math not established – Reliance on Adhikar Patra is held to be misplaced as the same is not a document of title – Principle of transfer – Indicated. Borisa Padra & Anr. -V- Eluteria Nayak. 2018 (II) I.L.R. Cut……... 92 Order 41 Rule 17(1 ) – Explanation under – The question as to whether the Court was justified in deciding the appeal on merit in the absence of any representation on behalf of the appellant – Held, in view of Explanation to Order 41 Rule 17 (1) CPC the appeal should not have been decided on merit – Ghanshyam Dass Gupta v. Makhan Lal, (2012) 8 SCC 74 followed. vi Biswanath Dixit & Ors. –V- Kothabandhu Pujapanda & Anr. 2018 (II) I.L.R. Cut……... 88 CRIMINAL PROCEDURE CODE, 1973 – Section 164 read with Rule-49 of GRCO (Volume-I, Criminal) – Judicial Confession – Mode of recording – Allegation by defense that sufficient time was not given for reflection – Records reveal otherwise – Held, analyzing and comparing the facts and ratio decided in the aforesaid two cases as well as the case at hand, we are of the opinion that the appellants in the instant case have been given sufficient time for their reflection and the confession was voluntary. Keda Behera & Anr.-V- State of Odisha. 2018 (II) I.L.R. Cut……... 45 Section 167(2) read with Section 36(A)(4) of the N.D.P.S. Act – Accused in custody for the offence punishable under Section 20(b)(ii)(C) of the N.D.P.S. Act – Application for bail for not filing the charge sheet within time – No application by prosecution seeking extension of time or indicating the progress of investigation – Accused is entitled for bail. Bhabagrahi Patra -V- State of Orissa. 2018 (II) I.L.R. Cut……... 190 Section 239 – Rejection of petition for discharge and framing of charge under section 12 of the Prevention of Corruption Act,1988 against the Informant as an abettor for not supporting the prosecution case – Whether rejection proper – Held, no, as the abetment always precedes the act of commission or omission whether implemented or not in order to create the liability. Bhabeswar Rana -V- State of Odisha (Vig.) 2018 (II) I.L.R. Cut……... 184 Section 239 – Discharge petition – Rejection thereof and framing of charges under section 13(2) read with section 13(1)(d)(ii) and section 7 of the Prevention of Corruption Act, 1988 – Plea of invalid sanction taken before the trial court – Not considered – Whether the plea of invalid sanction was required to be dealt with by the Trial court – Held, Yes. Manoranjan Samal -V- State of Orissa (Vig.) 2018 (II) I.L.R. Cut……... 146 Section 407 – Application for transfer of the case – Petitioner, who is an accused and facing trial for the offences punishable under Section 376(2)(i) of the I.P.C. and Section 6 of the POCSO Act – Ground of transfer is that the Presiding Officer of the said court is vindictive towards the petitioner – Not found to be correct – Case cannot be transferred merely because favourable orders were not passed. P. Srichandan -V- State of Odisha. 2018 (II) I.L.R. Cut……... 187 vii Section 439 – Bail application – Consideration thereof – Plea of extending the benefit of parity as co-accused has already been released on bail – Whether parity can be granted in all cases – Held, No. – Principles – Discussed. Natha Raksha -V- State of Orissa. 2018 (II) I.L.R.