Anam Charan Behera Vs. State

Anam Charan Behera vs State

Disposition Petition dismissed Court Orissa Decided Jul 25, 2001

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https://sooperkanoon.com/case/536635

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Citation: sooperkanoon.com/536635
Court: Orissa High Court
Judge: C.R. Pal, J.
Decided On: Jul 25, 2001
Case Number: Crl. Misc. Case No. 4411 of 2001
Subject: Criminal
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- 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 ...

Key legal issue: Criminal
Outcome / disposition: Petition dismissed
Acts & sections: Code of Criminal Procedure (CrPC) , 1974 - Sections 205 and 205(1); Indian Penal Code (IPC) - Sections 224, 225, 380, 457 and 511

Parties & Advocates

Appellant / Petitioner

Anam Charan Behera

Advocate U.K. Mohanty, ;H.K. Mallick and N. Biswal, Advs.

Respondent

State

Advocate D.R. Mohapatra, A.G.A.

Legal References

Acts: Code of Criminal Procedure (CrPC) , 1974 - Sections 205 and 205(1); Indian Penal Code (IPC) - Sections 224, 225, 380, 457 and 511
Cases Referred: Surojit Sen v. Sanatan Behera
Reported In: 2002CriLJ381

Excerpt

.....or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - it..........magistrate should have been liberal and keeping in view the principle laid down in (1999) 17 ocr 473 surojit sen v. sanatan behera should have allowed the prayer. the learned addl. govt. advocate, however, argued in support of the impugned order. in this context, it is brought to the notice of the court that the case is of the year 1985. even though warrant was issued, the petitioner's attendance could not be procured and the case is pending for appearance of the petitioner for about 16 (sixtten) years. he has been described in the charge sheet as an absconder. it is well known that the power conferred under section 205(1), cr. p.c. is discretionaiy and no hard and fast rule can be laid down as to the manner in which it is to be exercised. court is to exercise the discretion after looking into all the relevant circumstances like inconvenience likely to be caused to the accused if he is required to be absent from his vocation, profession, trade, occupation and calling for attendance in court, against prejudice likely to be caused if he does not appear in court. here the case is pending for the last 16 years for the appearance of the accused/petitioner in court. it also appears that his attendance could not be secured despite issuance of warrants. in the above circumstances, it cannot be said that the learned magistrate has exercised his discretion improperly. 4. under the above circumstances, the order passed by the learned magistrate rejecting the prayer of the petitioner to be represented by his counsel does not appear to be unjust inquiring interference.accordingly, the petition is dismissed.

Full Judgment

ORDER

C.R. Pal, J.

1. The petitioner being aggrieved by the order dated 9-5-2001 passed by the learned S.D.J.M. (Sadar), Cuttack in G.R. Case No. 1775 of 1985 rejecting his prayer to dispense with his personal attendance in terms of Section 205, Cr. P.C. has filed this petition for quashing the impugned order.

2. The petitioner is an accused in G.R. Case No. 1775 of 1985 of the Court of S.D.J.M. (Sadar), Cuttack. The allegation against him is that on 11-7-1985 at about 2.00 a.m. he entered into the house of the informant Mula Sahoo through the window of the kitchen room and seeing him the inmates of the house raised alarm and with the help of others caught hold of the petitioner and handed him over to the Grama Rakhi. But, the Grama Rakhi freed him on the request of the villagers. The matter was reported at the police station and a case was registered against the petitioner for the alleged offences under Sections 457, 380, 511, 224, 225, IPC. After investigation, police submitted charge sheet for the alleged offences showing him as an absconder. The learned Magistrate on receiving charge sheet took cognizance of the offences and since the offences alleged include offences triable under warrant procedure, he issued N.B.W. against the petitioner to secure his attendance in the Court. However, the warrant could not be executed. The petitioner through his counsel moved a petition under Section 205, Cr. P.C. on 9-5-2001 to dispense with the personal attendance of the petitioner' allowing his counsel to represent him in the case. The learned Magistrate after hearing both the sides rejected the said petition by the impugned order which is now under challenge.

3. The learned Counsel of the petitioner submitted that the petitioner is an employee under the State Government and as such it is difficult on his part to attend the Court on each date. It is also submitted that the learned Magistrate should have been liberal and keeping in view the principle laid down in (1999) 17 OCR 473 Surojit Sen v. Sanatan Behera should have allowed the prayer. The learned Addl. Govt. Advocate, however, argued in support of the impugned order. In this context, it is brought to the notice of the Court that the case is of the year 1985. Even though warrant was issued, the petitioner's attendance could not be procured and the case is pending for appearance of the petitioner for about 16 (sixtten) years. He has been described in the charge sheet as an absconder. It is well known that the power conferred under Section 205(1), Cr. P.C. is discretionaiy and no hard and fast rule can be laid down as to the manner in which it is to be exercised. Court is to exercise the discretion after looking into all the relevant circumstances like inconvenience likely to be caused to the accused if he is required to be absent from his vocation, profession, trade, occupation and calling for attendance in Court, against prejudice likely to be caused if he does not appear in Court. Here the case is pending for the last 16 years for the appearance of the accused/petitioner in Court. It also appears that his attendance could not be secured despite issuance of warrants. In the above circumstances, it cannot be said that the learned Magistrate has exercised his discretion improperly. 4. Under the above circumstances, the order passed by the learned Magistrate rejecting the prayer of the petitioner to be represented by his counsel does not appear to be unjust inquiring interference.

Accordingly, the petition is dismissed.

Same Court & Year Orissa · 2001 Same Parties Anam Charan Behera vs State Same Subject Criminal Same Judge C.R. Pal, J. Acts & Sections Code of Criminal Procedure (CrPC) , 1974 - Sections 205 and 2...

Criminal