Dhaneswar Patro Vs. State

Dhaneswar Patro vs State

Disposition Petition allowed Court Orissa Decided Sep 05, 2005

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https://sooperkanoon.com/case/536909

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Citation: sooperkanoon.com/536909
Court: Orissa High Court
Judge: R.N. Biswal, J.
Decided On: Sep 05, 2005
Subject: Criminal
Disposition: Petition allowed

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 allowed

Parties & Advocates

Appellant / Petitioner

Dhaneswar Patro

Respondent

State

Legal References

Reported In: 2007(II)OLR111

Excerpt

.....original 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. .....arises out of a petition filed under section 482 of cr.p.c. challenging the order dated 20.1.1990 passed by the j.m.f.c., nimapara in 2(b) c.c. case no. 106 of 1990 wherein he took cognizance of the offences under section 27(1) (a) of orissa forest act and rule 21 of t.t. rules.4. learned counsel for the petitioner submits that as per the prosecution report the occurrence took place on 15.10.1988 at 7.00 p.m. the offence under section 27(1) (a) of the forest act is punishable with imprisonment which may extend to six months and fine of rs. 500/- and the offence under rule 21 of t.t. rules is punishable with imprisonment which may extend to one year or fine which may extend to rs. 1,000/- or both. so, the learned court below ought not have taken cognizance of the aforesaid offences on 20.1.1990 more than one year after the alleged occurrence, in violation of the provision under section 468(2)(b) of cr.p.c. he further submits that the petitioner filed a petition on 22.3.2005 before the j.m.f.c., to recall the order of taking cognizance but he rejected it on the sole ground that he has no power to recall his own order. so the crlmc should be allowed.5. learned addl. standing counsel submits that the occurrence took place in the year 1988. cognizance of the aforesaid offences was taken against the petitioner and two others on 20.1.1990. in the meantime more than 15 years have been elapsed, so at this belated stage the petition under section 482 of cr.p.c. should not be entertained in favour of the petitioner.6. as per the prosecution case the alleged occurrence took place on 15.10.1988 at 7.00 p.m. admittedly the offences are punishable with imprisonment-less than one year. so cognizance ought not have been taken of the said offences because of the limitation prescribed under section 468(1)(b) of cr.p.c. no doubt a petition under section 482 of cr.p.c. should not be entertained when there is much delay in filing it. but to secure the ends of justice and undo the.....

Full Judgment

ORDER

R.N. Biswal, J.

1. Even though the case is listed for admission today, on the prayer and consent of learned Counsel for the parties, it is taken up for final hearing.

2. Heard

3. This CRLMC arises out of a petition filed under Section 482 of Cr.P.C. challenging the order dated 20.1.1990 passed by the J.M.F.C., Nimapara in 2(b) C.C. Case No. 106 of 1990 wherein he took cognizance of the offences under Section 27(1) (a) of Orissa Forest Act and Rule 21 of T.T. Rules.

4. Learned Counsel for the petitioner submits that as per the prosecution report the occurrence took place on 15.10.1988 at 7.00 P.M. The offence under Section 27(1) (a) of the Forest Act is punishable with imprisonment which may extend to six months and fine of Rs. 500/- and the offence under Rule 21 of T.T. Rules is punishable with imprisonment which may extend to one year or fine which may extend to Rs. 1,000/- or both. So, the learned Court below ought not have taken cognizance of the aforesaid offences on 20.1.1990 more than one year after the alleged occurrence, in violation of the provision under Section 468(2)(b) of Cr.P.C. He further submits that the petitioner filed a petition on 22.3.2005 before the J.M.F.C., to recall the order of taking cognizance but he rejected it on the sole ground that he has no power to recall his own order. So the CRLMC should be allowed.

5. Learned Addl. Standing Counsel submits that the occurrence took place in the year 1988. Cognizance of the aforesaid offences was taken against the petitioner and two others on 20.1.1990. In the meantime more than 15 years have been elapsed, so at this belated stage the petition under Section 482 of Cr.P.C. should not be entertained in favour of the petitioner.

6. As per the prosecution case the alleged occurrence took place on 15.10.1988 at 7.00 P.M. Admittedly the offences are punishable with imprisonment-less than one year. So cognizance ought not have been taken of the said offences because of the limitation prescribed under Section 468(1)(b) of Cr.P.C. No doubt a petition under Section 482 of Cr.P.C. should not be entertained when there is much delay in filing it. But to secure the ends of justice and undo the wrong, there is no fetter to exercise the power under Section 482 of Cr.P.C. Since the order under challenge is illegal on the very face of it, even of the petition under Section 482 of Cr.P.C. is filed at a belated stage, in my view it should not be rejected on the ground of delay alone. Justice demands that the order under challenge is to be set aside. So, the petition under Section 482 of Cr.P.C. is allowed and the entire proceeding in 2(b) C.C. case No. 106 of 1990 pending in the Court of J.M.F.C., Nimapara including the impugned order is hereby quashed.

7. The CRLMC is allowed accordingly.

8. Urgent certified copy of this order be granted on proper application.

Same Court & Year Orissa · 2005 Same Parties Dhaneswar Patro vs State Same Subject Criminal Same Judge R.N. Biswal, J.

Criminal