Non-Examination Of Magistrate Who Conducted Test Identification Parade Strikes Severe Blow On Prosecution And Cause Of Justice; Orissa HC Sets Aside Conviction

Above all, the prosecution has not offered any explanation as to why the Magistrate, who conducted T.I. parade was not examined to prove the report, inasmuch as many things the defence could have brought out by way of cross-examination of the Magistrate regarding the irregularities or procedural infirmities, if any, made during conduct of the T.I. parade. Recently, in the case of Umesh Chandra and others -Vrs.-State of Uttarakhand reported in MANU/SC/1412/2021 : (2021) 17 Supreme Court Cases 616, the Hon'ble Supreme Court has expressed concern about non-examination of Magistrates to prove the sanctity of T.I. parade and observed as follows:

"10. But more important than that, the test identification parade being a part of the investigation, has to be proved by the prosecution as having been held in accordance with law. The onus lies on the prosecution to establish that the T.I parade was held in accordance with law. It is only after the prosecution prima facie establishes a valid T.I parade having been held, the question of considering any objection to the same arises. If the prosecution has failed to establish that a T.I parade was properly held by examining the witnesses to the same, there is nothing for the accused to disprove. In the present case, a Magistrate is stated to have conducted the T.I parade. The Magistrate has not been examined. No explanation is forthcoming why the Magistrate was not examined."

Thus, it is undisputed that the Public Prosecutor has a duty to examine the Magistrate who conducts the T.I. parade so that the legal sanctity of the T.I. parade report can be ascertained during the trial. Non-examination of the Magistrate strikes a severe blow not only to the prosecution case but also to the cause of justice as irregularities, if any, committed in such T.I. parade cannot be canvassed and discussed by the trial Court in his absence from the witness box. In the present case, no plausible explanation has been offered as to why the Magistrate was not examined in the Court to prove the T.I. parade report. In the case in hand, the prosecution has proved the T.I. parade report through P.W.4, the informant who has stated that he had signed the T.I. parade report and accordingly, the report was marked as Ext.2 and the signature of P.W.4 was marked as Ext.2/1. Mere marking of the T.I. parade report is not enough inasmuch as the person who conducted the T.I. parade could only highlight what precautions he took, what procedure he followed during such T.I. parade. Lapses, if any, on his part during the proceedings of the T.I. parade which strikes at the root of the identification evidence, can be brought out by the defence counsel in the cross-examination. If the Magistrate is dead or his attendance could not be procured during trial for any reason, the trial Court has to specifically mention the same in the order-sheet and thereafter the prosecution can adduce cogent evidence to prove such T.I. parade report. Identification proceedings are not conducted for the pleasure of the prosecution. It has got a valuable purpose even though the identification test does not constitute substantive evidence.

 IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLA Nos. 21 of 2012, 504 of 2012 and 719 of 2012

Decided On: 04.04.2024

Baikuntha Bhoi and Ors. Vs. State of Odisha

Hon'ble Judges/Coram:

S.K. Sahoo, J.

Citation: MANU/OR/0369/2024.

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Orissa HC: Mere absence of affidavit supporting allegations against Judicial Officer does not warrant automatic dismissal of complaint and departmental proceedings

 The Hon'ble Chief Justice of India, vide D.O. letter No. CJI/CC/Comp/2014/1405 dated 03-10-2014, issued a circular, that was later circulated as a guideline by the Government of India, Ministry of Law and Justice as per Annexure-3 for dealing with the complaints against the subordinate judiciary, read as -

“As you are aware, recently, Hon'ble the CJI, vide his D.O. No. CJI/CC/Comp/2014/1405 dt. 03.10.2014 addressed to the Chief Justice of all the High Courts has asked the High Courts and subordinate judiciary not to entertain any complaint against a judicial officer it is accompanied by sworn affidavits and verifiable material to substantiate the allegation. Expressing concern over the large number of complaints being filed against subordinate judiciary by people having vested interest and personal agenda, Hon'ble CJI has directed that authenticity of the complaints must be ascertained before any action is taken on it. In view of the provisions of the Article 235 of the Constitution, further action relating to the grievance/complants against the judicial officers lies at the High Court level.”

The letter imports specific directives to the Chief Justices of all the High Courts, emphasising that complaints against judicial officers should not be entertained unless accompanied by sworn affidavits and verifiable material to substantiate the allegations. This guideline was issued to address the concerns over the rising number of complaints against the subordinate judiciary, often filed by individuals with vested interests and personal agendas. The Hon'ble CJI underscored the necessity of ensuring the authenticity of such complaints before taking any action to prevent unwarranted harassment of judicial officers. {Para 7}

8. A plain reading of the guideline is sufficient to understand its object. The words “accompanied by sworn affidavits” and “verifiable material to substantiate the allegation” have to be read together in a complete and comprehensive manner. It emerges, that, merely because a complaint is not supported by sworn affidavits, it does not automatically warrant an outright dismissal. In the complete and comprehensive reading of the said guideline, a complaint is not supposed to be ignored from its very inception without even verifying the legitimacy of the complaint as nowhere in the guideline the High Court is debarred from initiating its own enquiry over any complaint where the allegations prima facie reveals verifiable material supporting the complaint subject to an enquiry on the authenticity of the allegations against a concerned judicial officer. The object of initiating an enquiry in the first place is to ensure that serious allegations can be investigated thoroughly, even if the initial complaint lacks sworn affidavit, which underscores the High Court's authority and discretion in managing the subordinate judiciary.

While the guideline aims to protect judicial officers from unwarranted harassment, it does not eliminate the possibility of addressing genuine issues faced by individuals or communities due to the actions of a judicial officer. The High Court retains the responsibility to ascertain the authenticity of the complaints and take appropriate action based on verified facts. The requirement for sworn affidavits and verifiable material ensures that the process is fair and that decisions are not arbitrary. This is a kind of precaution suggested to protect the judicial officers from unwarranted harassment.

9. The concerned guideline issued by the Hon'ble CJI is designed to balance the need to protect judicial officers from frivolous complaints with the necessity of addressing genuine grievances. It is to uphold the principles of fairness, non-arbitrariness, and judicial independence, ensuring that the judiciary function effectively and impartially. The guideline is to reinforce the importance of due process in handling complaints against judicial officers. It ensures that complaints are evaluated based on evidence and merit, thereby upholding the rule of law.

 In the High Court of Orissa at Cuttack

(Before S.K. Sahoo and Chittaranjan Dash, JJ.)

Santosh Kumar Agarwal Vs Orissa High Court and Others.

W.P. (C) No. 17678 of 2024

Decided on August 8, 2024

Citation: 2024 SCC OnLine Ori 1952.

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What procedure Session Judge should follow if petitioner not presses revision application?

The petitioner prays that your Lordship may be graciously pleased to consider the facts stated in the petition and direct to Sessions Judge to allow the petitioner to withdraw the Criminal Revision No. 107 of 1986 and further direct the Sub-divisional Judicial Magistrate, Dhenkanal to issue summons to the accused persons and to complete the trial expeditiously.

5. It is argued by learned counsel for the petitioner that when the petitioner who had filed the revision did not like to proceed with the said case, the Sessions Judge should not have insisted upon hearing and disposal of the case on merit. The aforesaid legal and factual concept of the petitioner appears to be erroneous inasmuch as a party to a proceeding has no right of preferring a revision. According to the provision Under Section 397 read with Section 401 of the Code the Court of Session or the High Court, as the case may be, exercising the concurrent jurisdiction of superintendence over the functioning of the criminal Courts in subordinate Judiciary may examine any order passed by any criminal Court to find out if such order is illegal, unjust, improper or perverse or affecting the administration of justice and to pass appropriate order by exercising the revisional power. However, in view of the provisions in Section 397(2) of the Code interlocutory order are made not amenable to revisional jurisdiction. Power of revision can be exercised suo motu or on the basis of information received or application made by any of the parties or person connected therewith. Once the revision is admitted for hearing, it should not be disposed of without examining legality and correctness of such order. For that reason only, a Criminal Revision is debarred from being dismissed for default to the petitioner. Thus it leads to the logical conclusion that a revision once admitted to examine correctness of an impugned order cannot be dismissed as not pressed. Under such circumstance, the Sessions Judge was right in his approach in rejecting the memo and disposing of the revision on merit.

 IN THE HIGH COURT OF ORISSA

Criminal Misc. Case No. 2363 of 1992

Decided On: 01.05.1998

Sanat Kumar Patnaik Vs. Binoy Kumar Nayak and Ors.

Hon'ble Judges/Coram:

P.K. Tripathy, J.

Citation: MANU/OR/0325/1998,1999 Cri L J 351 (Orissa).

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Orissa HC: Second revision against fresh order passed by lower court after remand by revisional court maintainable.

It is not understood as to how the Sessions Judge could apply this provision to hold that the revision before the Sessions Judge was barred Under Section 397(3). Cr. P.C. The earlier Criminal Revision which had been filed before the Higli Court had been disposed of directing the trial Court to re-consider the matter and thereafter the trial Court after reconsideration passed a fresh order rejecting the application for recalling the witness. Against the said order, revision was filed before the Sessions Judge. The question as to whether such a revision before the Sessions Judge was maintainable in view of the bar contained in Section 397(2), Cr. P.C. is another matter which need not detain us. The fact remains that the Sessions Judge has not considered the question of maintainability of the revision on the ground of bar Under Section 397(2), but Under Section 397(3), Cr. P.C. Law is well settled that Section 397(3), Cr. P.C. bars a second revision at the instance of the same petitioner. In other words, if an order of the trial Court is challenged before the Sessions Judge or the High Court in revision and such revision is dismissed on merit, a further revision cannot be filed before the High Court or the Sessions Judge, as the case may be, by the party who had unsuccessfully filed the first revision. This does not mean that where a revision has been disposed of with a direction for reconsideration and fresh order is passed by the trial Court on reconsideration, the same cannot be subject to another revision.

 IN THE HIGH COURT OF ORISSA

Original Jurisdiction Case No. 9288 of 1999

Decided On: 06.08.1999

Indrajeet Roy Vs. Republic of India

Hon'ble Judges/Coram:

P.K. Misra and R.K. Patra, JJ.

Authored By : P.K. Misra, R.K. Patra

Citation: 1999 CRLJ 4727 (Orissa),MANU/OR/0173/1999.

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Whether the court should quash complaint under Domestic violence Act if complainant fails to cite detailed particulars of domestic violence?

 After perusing the complaint petition, this Court is of the considered view that some allegations have been made undoubtedly in general terms but then it is not expected of the complainant to cite the detailed particulars of every single such act that may be treated as an act of domestic violence. It has been specifically alleged that the husband of the complainant used to exhibit violent behavior but the petitioners, instead of restraining him allegedly encouraged him to do so. They also restrained her from disclosing such acts before her parents. Thus, while the main allegations appear to be directed against the husband, the role of the present petitioners appears to be confined to supporting their son and in omitting to restrain him from exhibiting violent behavior towards the complainant. Read as a whole, it cannot be said that the averments do not make out a case of domestic violence against the petitioners. On the contrary, this Court is of the view that the averments, prima facie, show acts of domestic violence by the petitioners against the complainant by way of commission as well as omission. It goes without saying that the allegations need to be proved to hold them finally guilty. But at this preliminary stage it would suffice for the proceeding to continue against them.{Para 8}

IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLREV No. 266 of 2020

Decided On: 05.01.2023

Girish Prasad Mishra and Ors. Vs. Lopamudra Kar

Hon'ble Judges/Coram:

Sashikanta Mishra, J.

Citation: MANU/OR/0014/2023.

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Whether Appellate court has the power to make any consequential or incidental order in an appeal filed U/S 373 of CRPC?

 386. Powers of the Appellate Court.—After

perusing such record and hearing the appellant or

his pleader, if he appears, and the Public

Prosecutor if he appears, and in case of an appeal

under section 377 or section 378, the accused, if he

appears, the Appellate Court may, if it considers

that there is no sufficient ground for interfering,

dismiss the appeal, or may—

(a) in an appeal from an order or acquittal, reverse

such order and direct that further inquiry be made,

or that the accused be re-tried or committed for

trial, as the case may be, or find him guilty and

pass sentence on him according to law;

(b) in an appeal from a conviction—

(i) reverse the finding and sentence and acquit or

discharge the accused, or order him to be re-tried

by a Court of competent jurisdiction subordinate

to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the

nature or the extent, or the nature and extent, of

the sentence, but not so as to enhance the

same—

(c) in an appeal for enhancement of sentence—

(i) reverse the finding and sentence and acquit or

discharge the accused or order him to be re-tried

by a Court competent to try the offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the

nature or the extent, or, the nature and extent, of

the sentence, so as to enhance or reduce the

same;

(d) in an appeal from any other order, alter or

reverse such order;

(e) make any amendment or any consequential or

incidental order that may be just or proper:

Provided that the sentence shall not be enhanced

unless the accused has had an opportunity of

showing cause against such enhancement:

Provided further that the Appellate Court shall

not inflict greater punishment for the offence which

in its opinion the accused has committed, than

might have been inflicted for that offence by the

Court passing the order or sentence under appeal.

The very use of the words “and in case of an appeal under

section 377 or section 378” means that the said provision

being generally applicable to all kinds of appeals under

Chapter-XXIX also applies to appeals filed under Sections

377 and 378 Cr.P.C. This would be further evident from a

reading of clause (d) conferring power on the appellate

Court to alter or reverse order passed in an “appeal against

any other order”. So, clause (a) relates to appeal from an

order of acquittal, clause (b) relates to appeal from a

conviction and clause (c) relates to appeal for enhancement

of sentence. The expression “appeal from any other order”

in clause (d) is obviously wide enough to include all appeals

including those provided under clauses (a), (b) and (c) and

therefore, shall include an appeal under Section 373 also.

Clause (e) is a general power available to the Court dealing

with all kinds of appeals. Thus, in an appeal under Section

373 of Cr.P.C. the appellate Court has the power to make

any consequential or incidental order that may be just or

proper. Obviously, this power includes the power to stay

the operation of the order impugned in the appeal. The

reasoning of the Court below that power given under

Section 386 Cr.P.C. is only meant for appeal under Section

377 or 378 Cr.P.C., is clearly erroneous.

IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLMC No. 1284 of 2023

Application under Section 482 of Criminal Procedure Code,

1973.

Mamata Sahoo  Vs  State of Odisha 

CORAM:

JUSTICE SASHIKANTA MISHRA

Dated: 11th April, 2023

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Under which circumstances second application U/S 97 of CRPC is maintainable?

If the Court ultimately holds that keeping of

the child in the manner alleged in the subsequent

application, in fact amounts to illegal confinement, then

the same cannot be restricted to any particular date.

Therefore, in particular, looking at the statutory intent

behind enactment of Section 97 of Cr.P.C. it can be safely

held that in the peculiar facts and circumstances of the

present case, the filing of the subsequent application

cannot be treated as barred by law. Moreover, as has been

argued by Mr. Pattanayak, there is no concept of res

judicata in criminal jurisprudence. From the facts

narrated hereinbefore, it is evident that there is dispute

between the petitioner and her husband and that their 2

and ½ years child (at the relevant time) was alleged taken

away forcibly by opposite party no.3 and the petitioner

was not allowed to meet her child. Further, the child is

said to be kept confined to a room and there is also some

danger to its life. Now, whether the allegation as above is

correct and/or whether this would amount to wrongful

confinement of the child would depend on the facts and

circumstances of the case but it would suffice to say that

if the allegations leveled by the petitioner are accepted on

their face value, the possibility of such offence having

been/being committed cannot entirely be ruled out.

Reference to Section 340 of IPC would be apposite at this

stage which reads as follows:

“340. Wrongful confinement.—Whoever

wrongfully restrains any person in such a

manner as to prevent that person from

proceedings beyond certain circumscribing

limits, is said “wrongfully to confine” that

person.”

It all depends on the facts and circumstances of the case.

To such extent therefore, this Court is of the considered

view that the second application filed under Section 97 of

Cr.P.C. by the petitioner was maintainable. {Para 5}

IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLREV No. 196 of 2022

Amrita Ray  Vs State of Odisha and Others

CORAM:

JUSTICE SASHIKANTA MISHRA

Dated: 7th February, 2023

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Whether the court can refuse default bail U/S 167 of CRPC to accused based on the date of preparation of chargesheet?

 As it reveals from the impugned order and copy of the lower court record that admittedly charge-sheet was filed on 16th January, 2022. So irrespective of any date mentioned regarding preparation of the charge-sheet, the date of its submission before the Court is only

relevant for the purpose of default bail under Section 167 (2) of the Cr.P.C. As per the language used in Section 167, Cr.P.C., the detention is authorized pending completion of investigation and completion of investigation leads to submission of report under Section 173(2), Cr.P.C. The words used in Section 173(2), Cr.P.C. is ‘as soon as’. Therefore the inference is that, the investigation has been completed only when the charge-sheet is submitted to the court. Thus the date of completion of investigation is the date of submission of charge-sheet and reverse. In the instant case, when the charge-sheet was submitted on 16th January, 2022 beyond 180 days period, the right of default bail accrued in favour of the accused. {Para 8}

IN THE HIGH COURT OF ORISSA AT CUTTACK

C R L M C No.362 of 2022

Pramesh Pradhan@Rani and another Vs State of Orissa

CORAM: JUSTICE B.P. ROUTRAY

Dated: 20th April, 2022

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Whether the court must hear accused before allowing prosecution extension of time for filing of chargesheet?

In the case of Hitendra Vishnu Thakur (supra) and

followed in a series of the decisions, the Apex Court has held

that when a petition is filed by the Public Prosecutor seeking

extension of time to submit charge-sheet, its notice should be

issued to the accused before granting such extension so that he

may have an opportunity to oppose it on all legitimate and legal

grounds available to him. Be it noted here that the said decision

pertains to Section 20(4) of TADA Act which is in pari materia

to the provision under Section 36-A(4) of the NDPS Act. This

Court in the case of Lambodar Bag v. State of Odisha,

reported in 2018 (71) OCR 31 has also held that it is mandatory

to grant an opportunity of hearing to the accused before

granting extension of time to complete investigation. Relying

upon the aforesaid case as also the case of Hitendra Vishnu

Thakur (supra) and several other cases decided by the apex

court and other High Courts, this Court has reiterated the said

principle in the case of Iswar Tiwari v. State of Odisha,

reported in 2020 (80) OCR 289. In summarizing the legal

position as regards the provisions under Section 167(2) of

Cr.P.C read with Section 36(A)(4) of the NDPS Act, this Court

in Iswar Tiwari (supra) held that the notice must mandatorily

be issued to the accused and he must be produced before the

Court whenever such an application is taken up and that where

any such report occurs the question of it being contested does

not arise and a right accrues in favour of the accused.

10. Examined in the background of the aforementioned

legal proposition it is evident that the order passed by learned

Special Judge on 27.01.2021 granting extension of the time to

complete investigation by thirty days without having the

accused persons produced before him and without granting

them an opportunity to have their say in the matter renders the

same illegal and unsustainable in the eye of law. {Para 9}

IN THE HIGH COURT OF ORISSA AT CUTTACK

BLAPL No. 9135 of 2021

Biru Singh Vs State of Odisha 

CORAM:

JUSTICE SASHIKANTA MISHRA

Dated: 22.02.2022

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Can the court refuse to bail a juvenile above 16 years of age prosecuted for a heinous offence?

It is also necessary to state here that although

a distinction has been carved out among two categories of

CICLs – (i) The CICLs aged below 16 years and (ii) CICLs

above 16 years as regards enquiry by the JJ Board or trial

by the Children’s Court as per the provisions of Section 15

and Section 18 ( 3) of the Act , but there is no distinction

as regards the consideration of their prayer for bail and

hence the prayer for bail of both categories of CICLs is to

be considered as per the mandate of Section 12 of the JJ

Act .

ORISSA HIGH COURT

Nari @ Narendra Barik Vrs.  State of Odisha 

Dated: 17.05.2021

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Whether Magistrate can discharge the accused in all compoundable offences if the complainant remains absent?

 A plain reading of the above provision clearly indicates that a Magistrate has the power to discharge an accused of an offence which is either compoundable or is a non-cognizable one. The clauses 'and the offence may be lawfully compounded' and is not a cognizable offence are separated by a disjunctive conjunction 'or' which indicates that they are alternative and not cumulative. Thus, the section applies not only to cases where the offence is a compoundable one but also where though it is not compoundable, it is non-cognizable. The power under the section can be exercised in respect of all compoundable offences, whether, cognizable or not, and all non-cognizable offences, whether compoundable or not.{Para 5}

6. Section 249 of the new Code corresponds to Section 259 of the old Code. Section 259 was amended by the Amending Act of 1923 and the words 'or is not a cognizable offence were added after the words 'may be lawfully compounded'. Prior to the amendment, the power was exercisable in cases dealing with offences that could be lawfully compounded. The intention behind the amendment was to enlarge the scope of Section 259 by making it applicable also to all non-cognizable offences. If the intention of the legislature had been that the powers conferred by the section should be exercised in respect of an offence which is both compound-able and non-cognizable, it would have used the conjunction 'and' or 'but' instead of the disjunctive conjunction 'or' between the clauses 'and the offence may be lawfully compounded' and 'is not a cognizable offence'. The scope of the section would be curtailed instead of being enlarged if it is held that the power conferred by the section is exercisable when an offence is both compoundable and a non-cognizable one. 

Orissa High Court

Kanhei Pradhan vs Basanti Khati on 3 November, 1980

Equivalent citations: 1981 CriLJ 266

Author: P Mohanti

Bench: P Mohanti

ORDER P.K. Mohanti, J.

1. An order under Section 249 Cr. P.C. discharging the accused of an offence under Section 493 I.P.C. is under challenge in this revision.

2. A complaint had been filed by the opposite party against the petitioner for an offence under Section 493 I.P.C. cm 8-2-79 the complainant was absent and a petition for adjournment was filed on her behalf. The learned Chief Judicial Magistrate before whom the case was pending trial, rejected the petition for adjournment and since the case was a non-cognizable one, he discharged the accused in exercise of his powers under Section 249. Cr. P.C. An application in revision against that order was filed before the learned Sessions Judge of Sundargarh who set aside the order of discharge on the ground that the offence under Section 493 I.P.C. being non-compoundable, the provisions of Section 249 Cr, P.C. were not attracted. Aggrieved by the order of the learned Sessions Judge, the petitioner-accused has come up in revision.

3. It is urged on behalf of the petitioner that the offence under Section 493 I.P.C. being non-cognizable though not compoundable. the order of discharge could be passed under Section 249 Cr. P.C.

4. Section 249 Cr. P.C. reads as follows:

When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.

5. A plain reading of the above provision clearly indicates that a Magistrate has the power to discharge an accused of an offence which is either compoundable or is a non-cognizable one. The clauses 'and the offence may be lawfully compounded' and is not a cognizable offence are separated by a disjunctive conjunction 'or' which indicates that they are alternative and not cumulative. Thus, the section applies not only to cases where the offence is a compoundable one but also where though it is not compoundable, it is non-cognizable. The power under the section can be exercised in respect of all compoundable offences, whether, cognizable or not, and all non-cognizable offences, whether compoundable or not.

6. Section 249 of the new Code corresponds to Section 259 of the old Code. Section 259 was amended by the Amending Act of 1923 and the words 'or is not a cognizable offence were added after the words 'may be lawfully compounded'. Prior to the amendment, the power was exercisable in cases dealing with offences that could be lawfully compounded. The intention behind the amendment was to enlarge the scope of Section 259 by making it applicable also to all non-cognizable offences. If the intention of the legislature had been that the powers conferred by the section should be exercised in respect of an offence which is both compound-able and non-cognizable, it would have used the conjunction 'and' or 'but' instead of the disjunctive conjunction 'or' between the clauses 'and the offence may be lawfully compounded' and 'is not a cognizable offence'. The scope of the section would be curtailed instead of being enlarged if it is held that the power conferred by the section is exercisable when an offence is both compoundable and a non-cognizable one. Similar view has been taken in AIR 1963 Him. Pra. 32 : 1963 (2) Cri LJ 371 Shankar Dass v. Mahu Ram.

7. In the present case, the offence under Section 493 I.P.C. is non-cognizable though not compoundable. Therefore, the trial court had the discretion to discharge the accused. The learned Sessions Judge erred in holding that the provisions of Section 249 are not attracted to a case which is non-cognizable and non-compoundable.

8. In the result, I allow the revision, set aside the order of the learned Sessions Judge and restore that of the learned Chief Judicial Magistrate.

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Orissa HC recognizes Right To Be Forgotten: Allowing Videos/Photos Of Rape Victims To Remain On Social Media Is Violative Of Their Fundamental Right To Privacy

 

The Hon’ble Supreme

Court of India in the case of K.S. Puttaswamy v. Union of

India (supra) held that purpose limitation is integral for

executive projects involving data collection – unless prior

permission is provided, third parties cannot be provided access

to personal data.See Para 166 of K.S. Puttaswamy Judgment

This principle is embodied in S.5 of the yet to-

be-implemented Personal Data Protection Bill, 2019.

Purpose Limitation enhances transparency in data processing

and helps examine the proportionality of the mechanism used

to collect data for a specific purpose. Moreover, it prevents the

emergence of permanent data ‘architectures’ based on

interlinking databases without consent. In the present case

the proposition of purpose limitation is not applicable as the

question of seeking consent does not arise at all. No person

much less a woman would want to create and display gray

shades of her character. In most of the cases, like the present

one, the women are the victims. It is their right to enforce the

right to be forgotten as a right in rem. Capturing the images

and videos with consent of the woman cannot justify the

misuse of such content once the relation between the victim

and accused gets strained as it happened in the present case.

If the right to be forgotten is not recognized in matters like the

present one, any accused will surreptitiously outrage the

modesty of the woman and misuse the same in the cyber

space unhindered. Undoubtedly, such an act will be contrary

to the larger interest of the protection of the woman against

exploitation and blackmailing, as has happened in the present

case. The sloganeering of “betibachao” and women safety

concerns will be trampled.

14. Section 27 of the draft Personal Data Protection Bill, 2018

contains the right to be forgotten. Under Section 27, a data

principal (an individual) has the right to prevent continuing

disclosure of personal data by a data fiduciary. The aforesaid

provision which falls under Chapter VI (Data Principal Rights)

of the Bill, distinctly carves out the "right to be forgotten" in no

uncertain terms. In terms of this provision, every data

principal shall have the right to restrict or prevent continuing

disclosure of personal data (relating to such data principal) by

any data fiduciary if such disclosure meets any one of the

following three conditions, namely if the disclosure of personal

data:

(i) has served the purpose for which it was made or is no

longer necessary; or (ii) was made on the basis of the data

principal's consent and such consent has since been

withdrawn; or (iii) was made contrary to the provisions of the

bill or any other law in force.

In addition to this, Section 10 of the Bill provides that a

data fiduciary shall retain personal data only as long as may

be reasonably necessary to satisfy the purpose for which it is

processed. Further, it imposes an obligation on every data

fiduciary to undertake periodic reviews in order to determine

whether it is necessary to retain the personal data in its

possession. If it is not necessary for personal data to be

retained by a data fiduciary, then such personal data must be

deleted in a manner as may be specified.

15. In the instant case, prima facie, it appears that the

petitioner has not only committed forcible sexual intercourse

with the victim girl, but has also deviously recorded the

intimate sojourn and uploaded the same on a fake Facebook

account. Statement recorded under Section 161 of Cr. P.C. of

the victim girl is also clearly in sync with FIR version.

Considering the heinousness of the crime, the petitioner does

not deserve any consideration for bail at this stage. However,

this Court is of the view that Indian Criminal Justice system is

more of a sentence oriented system with little emphasis on

the disgorgement of victim’s loss and suffering, although the

impact of crime on the victim may vary significantly for

person(s) and case(s)-- for some the impact of crime is short

and intense, for others the impact is long-lasting. Regardless,

many victims find the criminal justice system complex,

confusing and intimidating. Many do not know where to turn

for help. As in the instant case, the rights of the victim to get

those uploaded photos/videos erased from Facebook server

still remain unaddressed for want of appropriate legislation.

However, allowing such objectionable photos and videos to

remain on a social media platform, without the consent of a

woman, is a direct affront on a woman’s modesty and, more

importantly, her right to privacy. In such cases, either the

victim herself or the prosecution may, if so advised, seek

appropriate orders to protect the victim’s fundamental right to

privacy, by seeking appropriate orders to have such offensive

posts erased from the public platform, irrespective of the

ongoing criminal process.

HIGH COURT OF ORISSA: CUTTACK

BLAPL No.4592 OF 2020

(In the matter of an application under Section 439,

Criminal Procedure Code, 1973)

Subhranshu Rout @ Gugul  Vs  State of Odisha 

PRESENT

 SHRI JUSTICE S.K. PANIGRAHI

 Date of judgment: 23.11.2020

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Orissa HC: Parameters for grant of the opportunity of hearing to victim/informant in an anticipatory bail application

I am of the view that in the absence of any provisions in Cr.P.C. in debarring an informant or de facto complainant or victim or an aggrieved party an opportunity of hearing in an application for anticipatory bail but keeping in view the criminal justice delivery system and public policy, it can be held as follows:--

"i. There is no mandate in law to issue notice to the informant/victim/aggrieved party by the Court before passing any interim order or final order in an application for anticipatory bail.

ii. While adjudicating an anticipatory bail application, if the Court feels that the informant/de facto complainant/victim/aggrieved party is required to be heard for an effective adjudication, then the Court can issue notice to such person for giving him a reasonable opportunity of hearing.

iii. If the informant/de facto complainant/victim/aggrieved party suo motu appears in Court in an application for anticipatory bail either to support or oppose such application and prays before the Court to give him an opportunity of hearing, the Court may accept such prayer if it feels the necessity of hearing such person in the interest of justice and for the just decision of the case.

iv. The counsel for the informant/de facto complainant/victim/aggrieved party can always appear during hearing of the anticipatory bail application and assist the State Counsel even if he is not awarded a right of audience in the matter by the Court. He can also assist the Court if any query is put forth to him.

v. Where it appears that there are a lot of aggrieved persons and all of them pray before the Court to give them an opportunity of hearing in an application of anticipatory bail, the Court may be reluctant to give them such opportunity if it feels that it would be a time consuming affair or in view of the time constraints, it would not be feasible to give each of them an opportunity of hearing or it would delay the disposal of such application. However if the Court feels in such cases to hear one of the aggrieved parties who can highlight the common grievances of all which is not properly addressed by the State Counsel, the Court can give an opportunity of hearing to such party.

vi. No particular category of cases can be enumerated as to where the informant/de facto complainant/victim/aggrieved party can be given an opportunity of hearing in an application for anticipatory bail inasmuch as it would depend upon the nature and gravity of the offences as well as the discretion of the Court which is to be exercised judiciously with reasonable care and caution.

vii. If a person is neither an informant nor victim but claims himself to be an aggrieved party and prays for an opportunity of hearing, the Court has to decide whether such person is an aggrieved party in the context of the case or not and if so, whether a right of hearing is to be given to him or not to take a right decision in the matter.

IN THE HIGH COURT OF ORISSA

B.L.A.P.L. No. 19817 of 2014

Decided On: 15.12.2014

Pramod Kumar Panda  Vs.  Republic of India

Hon'ble Judges/Coram:

S.K. Sahoo, J.

Citation:MANU/OR/0782/2014,

2015ALLMR(CRI)JOURNAL289

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Orissa HC: Live-in relationship by Same-sex couple is permissible under Domestic violence Act and woman in the said relationship is entitled to get the protection of the said Act

Thus, taking into consideration the aforesaid authoritative

pronouncements of the Hon’ble Supreme Court, there is hardly any scope to take a view other than holding that the petitioner has the right of self-determination of sex/gender and also he has the right to have a live-in relationship with a person of

his choice even though such person may belong to the same gender as the  petitioner.

Therefore, we allow the writ application (criminal) and direct that the petitioner and the daughter of the Opposite Party No.5 have the right to decide their sexual preferences including the right to stay as live-in partners.  The lady shall have all the rights of a woman as enshrined under the Protection of Women from Domestic Violence Act, 2005.

ORISSA HIGH COURT: CUTTACK

Writ Petition (Criminal) No. 57 of 2020

Chinmayee Jena @ Sonu Krishna Jena Vs State of Odisha 

P R E S E N T

 MR. JUSTICE S.K.MISHRA

AND

 MISS JUSTICE SAVITRI RATHO

Date of Judgment – 24.08.2020

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When should court release accused on default bail in case under NDPS Act?

In the event the investigation is not completed within 180 days, the Court is empowered under Section 167 (2) of the Code of Criminal Procedure, 1973 read with Section 36-A (4) of the NDPS Act to authorize detention for a period up to one year, the law as it stands mandates that the same shall be subject to the following, being complied in letter and spirit. The legal position can be thus summarized as follows: -

i) Report of the Public Prosecutor indicating the progress of investigation must accompany the application for extension of time;

ii) Specific and compelling reasons for seeking detention of the accused beyond 180 days must be mentioned; a merely formal application will not pass muster;

iii) A notice must mandatorily be issued to the accused and he must be produced in court whenever such an application is taken up,

iv) An application seeking extension of time in filing of chargesheet by the prosecution ought not to be kept pending and must be decided as expeditiously as possible and certainly before expiry of the statutory period.

v) In cases where any such default occurs, the question of it being contested doesn't arise and a right accrues in favour of the accused.

vi) The restrictions under Section 37 will have no application in such cases. It will have application only in the case of an application being decided on merits.

vii) Violation of any of the aforesaid would be construed as a "default" and the accused become entitled to admitted to bail by such a default.

viii) When an application under Section 167(2) Cr.P.C. r/w Section 36A(4) of the NDPS Act has been filed after expiry of the 180 days period and no decision thereupon, an indefeasible right to be released on bail accrued to the accused which cannot be defeated by keeping the said applications pending.

In case there is violation of any of the above, an indefeasible right to bail will be accrued to the accused. Applying the aforesaid parameters as laid down hereinabove, it is quite evident that there have been such "defaults" in the instant case, especially non-service of notice on the accused which is violative of the most cardinal principle of natural justice i.e. Audi Alteram Partem which creates an indefeasible entitlement to bail to the Petitioner.

IN THE HIGH COURT OF ORISSA AT CUTTACK

BLAPL No. 10152 of 2019

Decided On: 20.08.2020

 Iswar Tiwari   Vs.  State of Odisha

Hon'ble Judges/Coram:

S.K. Panigrahi, J.

Citation: MANU/OR/0171/2020

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Orissa HC: Provisions of CRPC shall have an overriding effect over Pension Rules

The said judgment was challenged by the State of

Maharashtra before the Supreme Court. Rule 27 of the Maharashtra

Civil Services (Pension) Rules 1982 is a pari materia provision with

Rule 7 of the OCS (Pension) Rules, 1992. On interpretation, it is held

by the Supreme Court that, those provisions of the Pension Rules is only meant for the purpose of granting, withholding or withdrawing the pension and it‟s operation would be in the limited field and cannot supersede the period of limitation prescribed under the Cr.P.C.

This Court also by relying the said decision of the

Supreme Court, in the case of Fani Bhusan Das & Anr. Vs. State

of Odisha (CRLMC Nos. 258 &686 of 2004, and 2626 of 2007),

reported in 2018 SCC Online 310, has observed that the provision

of the Cr.P.C. shall have an overriding effect and shall prevail

notwithstanding any provision in the Pension Rules, and therefore,

the provisions of OCS (Pension) Rules, 1992 would not give any relief to the petitioners.

So the contention of these two petitioners to give them

immune from criminal prosecution by virtue of Rule-7 of the OCS

(Pension) Rules is found without substance and accordingly rejected.
HIGH COURT OF ORISSA: CUTTACK

In CRLREV No.534 of 2019

Jitendra Nath Patnaik  Vs  State of Odisha (Vigilance) 

PRESENT:

 SHRI JUSTICE B.P. ROUTRAY

Date of Judgment : 06.08.2020

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Whether tenant in possession of the tenanted property after termination of tenancy can be held guilty for the offence of criminal trespass?

On the basis of the discussions made in the preceding paragraphs, we are of the opinion that the rigors of section 441, . I. P. C. as amended by the Orissa Act 22 of 1986 shall not be applicable to the following cases :

(i) Statutory tenants whose tenancy is governed by any statute.

[They are protected by tenancy laws like. Public Premises Eviction Act, etc.]

(ii) Tenant who has entered into possession by virtue of a lease.

[Rights of such tenant is governed under the provisions of the Transfer of Property Act and the Specific Relief Act and he acquires a right of possession. After determination of tenancy by notice, he would become "Tenant holding •over", "Tenant on sufferance" or "Tenant at will" as the case may be. His possession being juridical, is protected He can be evicted only in due process of law. The possession of such tenant cannot be equated with that of trespassers.]

(iii) Person who has entered into possession by virtue of some covenant like, agreement to sell, will etc. and/ or put forth a genuine right over the property possessed.

[If a person claims a right of title coupled with possession, till the dispute is adjudicated, his possession cannot be conclusively said to be that of a trespasser and his right to possess would be subject to the result of the suit or legal proceeding.]

However, the said section shall be applicable to the following category of persons ;

(i) Person who was permitted to possess a property for a particular period and after lapse of the said period, he was called upon to handover possession by issuance of quit notice,

(ii) Person who was put in possession by means of a 'licence' and who fails to handover possession after expiry of the term of licence and/or after receiving quit notice from the landlord,

(iii) Persons who was in "permissive possession" and who fails to handover possession even after receiving a notice to quit ]

The reference made by the learned Single Judge is answered accordingly.

Before parting, we feel constrained to observe that there cannot be an iron tight jacket to fit in all cases or tenants. It should be borne in mind that judicial process should not be permitted to be used as an instrument of oppression or needless harassment. The court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly. In a given case, the court adjudicating the dispute has to take a pragmatic view keeping in mind the discussions made in this judgment and other provisions of law and arrive at a subjective satisfaction as to whether the mischief as stipulated under section 441, I. P. C. (Amended) has been intentionally committed or not and pass necessary orders.

IN THE HIGH COURT OF ORISSA

Criminal Misc. Case No. 334 of 1994

Decided On: 14.03.2001

 Akapati Bhaskar Patro  Vs.  Trinath Sahu and Ors.

Hon'ble Judges/Coram:

P.K. Mohanty and A.S. Naidu, JJ.

Citation:  2001 I OLR 502,MANU/OR/0089/2001

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