Nrusingha Charan Jena Vs. State of Orissa - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........g.r. case no. 261 of 2002 wherein he refused to allow the petition under section 205 of cr.p.c.2. learned counsel for the petitioner submits that the petitioner is a cardiac patient and he suffers from hypertension also. in support of his submission he filed the attested xerox copy of the medical report of shashan medical hall, bhubaneswar showing that his blood pressure was 150/100 on 10.11.2007. he also filed another medical report of cardiology department of s.c.b. medical college and hospital, cuttack, wherein he was advised to undergo treadmill test and on undertaking that test it was found that he was suffering from heart ailment.3. the petitioner is alleged to have committed offence under sections 418/419/467/477a/409 of i.p.c. the trial court rejected the petition mainly on the.....

Judgment:
ORDER

R.N. Biswal, J.

1. Even though the case was listed to date for admission, on consent of learned Counsel for both parties, the case is taken up for final disposal.

Heard.

In this case the petitioner has challenged the order dated 9.8.2007 passed by the J.M.F.C., Khariar in G.R. Case No. 261 of 2002 wherein he refused to allow the petition under Section 205 of Cr.P.C.

2. Learned Counsel for the petitioner submits that the petitioner is a cardiac patient and he suffers from hypertension also. In support of his submission he filed the attested Xerox copy of the medical report of Shashan Medical Hall, Bhubaneswar showing that his blood pressure was 150/100 on 10.11.2007. He also filed another medical report of Cardiology Department of S.C.B. Medical College and Hospital, Cuttack, wherein he was advised to undergo treadmill test and on undertaking that test it was found that he was suffering from heart ailment.

3. The petitioner is alleged to have committed offence under Sections 418/419/467/477A/409 of I.P.C. The trial Court rejected the petition mainly on the ground that the petitioner was alleged to have misappropriated more than one crore of rupees. No doubt, it is the discretion of the Court to grant or otherwise the prayer made under Section 205 of Cr.P.C, but the discretion should be exercised judiciously. When the petitioner is suffering from severe hypertension and heart ailment, instead of rejecting the petition the Court below ought to have allowed, it, particularly as submitted by the learned Counsel for the petitioner, when the petitioner resides at Bhubaneswar which is at a distance of more than 400 K.Ms. from the Court of J.M.F.C. Khariar.

4. Therefore, the CRLMC is allowed and the impugned order dated 9.8.2007 as passed in the aforesaid G.R. Case by the J.M.F.C, Khariar is set aside. Personal attendance of the petitioner is dispensed with and he is permitted to appear through his counsel under Section 205 of Cr.P.C. in the aforesaid case. However, it is made clear that when personal attendance of the petitioner would be felt necessary, the J.M.F.C. may direct him to appear in person.

The CRLMC is disposed of accordingly.