Bishi Keshan Pradhan Vs. State of Orissa and ors. - Court Judgment

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	'title_for_layout' => 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
			'authreffered' => '',
			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2003(I)OLR324',
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$title_for_layout = 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | '
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		'id' => '535981',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
		'authreffered' => '',
		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
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			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
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			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
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			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
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			'decidedon' => '2003-01-29',
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			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
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		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2003(I)OLR324',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'Kumarunnissa v. Union of India<br>'
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View::_render() - CORE/Cake/View/View.php, line 933
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Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]
Code Context
                                    }

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                                echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";
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	'title_for_layout' => 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
			'authreffered' => '',
			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
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		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
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			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
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			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2003(I)OLR324',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bishi-keshan-pradhan-vs-state-orissa-ors',
	'args' => array(
		(int) 0 => '535981',
		(int) 1 => 'bishi-keshan-pradhan-vs-state-orissa-ors'
	)
)
$title_for_layout = 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535981',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
		'authreffered' => '',
		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
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			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
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			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
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			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
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			'decidedon' => '2003-01-29',
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			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
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		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
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		'casesref' => 'Kumarunnissa v. Union of India;',
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		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2003(I)OLR324',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Constitution',
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		'circuit' => null
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	(int) 0 => '<p>A.K. Patnaik, J.',
	(int) 1 => '<p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.',
	(int) 2 => '<p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.',
	(int) 3 => '<p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.',
	(int) 4 => '<p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.',
	(int) 5 => '<p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :',
	(int) 6 => '<p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and',
	(int) 7 => '<p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;',
	(int) 8 => '<p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :',
	(int) 9 => '<p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'',
	(int) 10 => '<p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :',
	(int) 11 => '<p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'',
	(int) 12 => '<p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
	(int) 13 => '<p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.',
	(int) 14 => '<p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p>',
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A.K. Patnaik, J.

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	'title_for_layout' => 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
			'authreffered' => '',
			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2003(I)OLR324',
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			'respondent' => 'State of Orissa and ors.',
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$title_for_layout = 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535981',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
		'authreffered' => '',
		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
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	(int) 0 => '<p>A.K. Patnaik, J.',
	(int) 1 => '<p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.',
	(int) 2 => '<p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.',
	(int) 3 => '<p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.',
	(int) 4 => '<p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.',
	(int) 5 => '<p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :',
	(int) 6 => '<p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and',
	(int) 7 => '<p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;',
	(int) 8 => '<p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :',
	(int) 9 => '<p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'',
	(int) 10 => '<p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :',
	(int) 11 => '<p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'',
	(int) 12 => '<p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
	(int) 13 => '<p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.',
	(int) 14 => '<p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p>',
	(int) 15 => '<p>'
)
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1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the National Security Act, 1980 (for short 'Act, 1980)'.

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	'title_for_layout' => 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
			'authreffered' => '',
			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '2003(I)OLR324',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
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		'id' => '535981',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
		'authreffered' => '',
		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2003(I)OLR324',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>A.K. Patnaik, J.',
	(int) 1 => '<p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.',
	(int) 2 => '<p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.',
	(int) 3 => '<p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.',
	(int) 4 => '<p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.',
	(int) 5 => '<p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :',
	(int) 6 => '<p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and',
	(int) 7 => '<p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;',
	(int) 8 => '<p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :',
	(int) 9 => '<p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'',
	(int) 10 => '<p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :',
	(int) 11 => '<p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'',
	(int) 12 => '<p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
	(int) 13 => '<p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.',
	(int) 14 => '<p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p>',
	(int) 15 => '<p>'
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2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution of India with a prayer to quash the same.

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	'title_for_layout' => 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | ',
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			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
			'authreffered' => '',
			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2003(I)OLR324',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bishi-keshan-pradhan-vs-state-orissa-ors',
	'args' => array(
		(int) 0 => '535981',
		(int) 1 => 'bishi-keshan-pradhan-vs-state-orissa-ors'
	)
)
$title_for_layout = 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535981',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
		'authreffered' => '',
		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
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		'pubs' => '2003(I)OLR324',
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		'respondent' => 'State of Orissa and ors.',
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	(int) 0 => '<p>A.K. Patnaik, J.',
	(int) 1 => '<p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.',
	(int) 2 => '<p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.',
	(int) 3 => '<p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.',
	(int) 4 => '<p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.',
	(int) 5 => '<p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :',
	(int) 6 => '<p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and',
	(int) 7 => '<p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;',
	(int) 8 => '<p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :',
	(int) 9 => '<p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'',
	(int) 10 => '<p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :',
	(int) 11 => '<p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'',
	(int) 12 => '<p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
	(int) 13 => '<p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.',
	(int) 14 => '<p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p>',
	(int) 15 => '<p>'
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3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.

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	'title_for_layout' => 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
			'authreffered' => '',
			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '2003(I)OLR324',
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			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Constitution',
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			'circuit' => null
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	),
	'casename_url' => 'bishi-keshan-pradhan-vs-state-orissa-ors',
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		(int) 0 => '535981',
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$title_for_layout = 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535981',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
		'authreffered' => '',
		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
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		'respondent' => 'State of Orissa and ors.',
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$content = array(
	(int) 0 => '<p>A.K. Patnaik, J.',
	(int) 1 => '<p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.',
	(int) 2 => '<p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.',
	(int) 3 => '<p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.',
	(int) 4 => '<p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.',
	(int) 5 => '<p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :',
	(int) 6 => '<p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and',
	(int) 7 => '<p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;',
	(int) 8 => '<p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :',
	(int) 9 => '<p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'',
	(int) 10 => '<p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :',
	(int) 11 => '<p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'',
	(int) 12 => '<p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
	(int) 13 => '<p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.',
	(int) 14 => '<p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p>',
	(int) 15 => '<p>'
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4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.

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	'title_for_layout' => 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
			'authreffered' => '',
			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '2003(I)OLR324',
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			'respondent' => 'State of Orissa and ors.',
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$title_for_layout = 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535981',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
		'authreffered' => '',
		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
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		'pubs' => '2003(I)OLR324',
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		'respondent' => 'State of Orissa and ors.',
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	(int) 0 => '<p>A.K. Patnaik, J.',
	(int) 1 => '<p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.',
	(int) 2 => '<p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.',
	(int) 3 => '<p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.',
	(int) 4 => '<p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.',
	(int) 5 => '<p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :',
	(int) 6 => '<p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and',
	(int) 7 => '<p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;',
	(int) 8 => '<p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :',
	(int) 9 => '<p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'',
	(int) 10 => '<p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :',
	(int) 11 => '<p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'',
	(int) 12 => '<p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
	(int) 13 => '<p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.',
	(int) 14 => '<p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p>',
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5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :

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	'title_for_layout' => 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
			'authreffered' => '',
			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'respondent' => 'State of Orissa and ors.',
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$title_for_layout = 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535981',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
		'authreffered' => '',
		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
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$content = array(
	(int) 0 => '<p>A.K. Patnaik, J.',
	(int) 1 => '<p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.',
	(int) 2 => '<p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.',
	(int) 3 => '<p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.',
	(int) 4 => '<p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.',
	(int) 5 => '<p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :',
	(int) 6 => '<p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and',
	(int) 7 => '<p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;',
	(int) 8 => '<p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :',
	(int) 9 => '<p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'',
	(int) 10 => '<p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :',
	(int) 11 => '<p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'',
	(int) 12 => '<p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
	(int) 13 => '<p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.',
	(int) 14 => '<p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p>',
	(int) 15 => '<p>'
)
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(i) the detaining authority was aware of the fact that the detenu is already in detention; and

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	'title_for_layout' => 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
			'authreffered' => '',
			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2003(I)OLR324',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Constitution',
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			'circuit' => null
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$title_for_layout = 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535981',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
		'authreffered' => '',
		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2003(I)OLR324',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Patnaik, J.',
	(int) 1 => '<p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.',
	(int) 2 => '<p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.',
	(int) 3 => '<p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.',
	(int) 4 => '<p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.',
	(int) 5 => '<p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :',
	(int) 6 => '<p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and',
	(int) 7 => '<p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;',
	(int) 8 => '<p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :',
	(int) 9 => '<p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'',
	(int) 10 => '<p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :',
	(int) 11 => '<p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'',
	(int) 12 => '<p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
	(int) 13 => '<p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.',
	(int) 14 => '<p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p>',
	(int) 15 => '<p>'
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(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;

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	'title_for_layout' => 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
			'authreffered' => '',
			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2003(I)OLR324',
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			'respondent' => 'State of Orissa and ors.',
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$title_for_layout = 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535981',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
		'authreffered' => '',
		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
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	(int) 0 => '<p>A.K. Patnaik, J.',
	(int) 1 => '<p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.',
	(int) 2 => '<p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.',
	(int) 3 => '<p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.',
	(int) 4 => '<p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.',
	(int) 5 => '<p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :',
	(int) 6 => '<p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and',
	(int) 7 => '<p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;',
	(int) 8 => '<p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :',
	(int) 9 => '<p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'',
	(int) 10 => '<p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :',
	(int) 11 => '<p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'',
	(int) 12 => '<p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
	(int) 13 => '<p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.',
	(int) 14 => '<p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p>',
	(int) 15 => '<p>'
)
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The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :

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	'title_for_layout' => 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
			'authreffered' => '',
			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '2003(I)OLR324',
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			'respondent' => 'State of Orissa and ors.',
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		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
		'authreffered' => '',
		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2003(I)OLR324',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Patnaik, J.',
	(int) 1 => '<p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.',
	(int) 2 => '<p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.',
	(int) 3 => '<p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.',
	(int) 4 => '<p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.',
	(int) 5 => '<p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :',
	(int) 6 => '<p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and',
	(int) 7 => '<p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;',
	(int) 8 => '<p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :',
	(int) 9 => '<p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'',
	(int) 10 => '<p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :',
	(int) 11 => '<p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'',
	(int) 12 => '<p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
	(int) 13 => '<p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.',
	(int) 14 => '<p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p>',
	(int) 15 => '<p>'
)
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Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
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'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
Code Context
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	'title_for_layout' => 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | ',
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			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
			'authreffered' => '',
			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2003(I)OLR324',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bishi-keshan-pradhan-vs-state-orissa-ors',
	'args' => array(
		(int) 0 => '535981',
		(int) 1 => 'bishi-keshan-pradhan-vs-state-orissa-ors'
	)
)
$title_for_layout = 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535981',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
		'authreffered' => '',
		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
		'observations' => null,
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		'pubs' => '2003(I)OLR324',
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		'respondent' => 'State of Orissa and ors.',
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	(int) 0 => '<p>A.K. Patnaik, J.',
	(int) 1 => '<p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.',
	(int) 2 => '<p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.',
	(int) 3 => '<p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.',
	(int) 4 => '<p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.',
	(int) 5 => '<p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :',
	(int) 6 => '<p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and',
	(int) 7 => '<p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;',
	(int) 8 => '<p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :',
	(int) 9 => '<p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'',
	(int) 10 => '<p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :',
	(int) 11 => '<p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'',
	(int) 12 => '<p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
	(int) 13 => '<p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.',
	(int) 14 => '<p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p>',
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It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :

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	'title_for_layout' => 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
			'authreffered' => '',
			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '2003(I)OLR324',
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			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Constitution',
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			'circuit' => null
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	),
	'casename_url' => 'bishi-keshan-pradhan-vs-state-orissa-ors',
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$title_for_layout = 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535981',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
		'authreffered' => '',
		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
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		'respondent' => 'State of Orissa and ors.',
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$content = array(
	(int) 0 => '<p>A.K. Patnaik, J.',
	(int) 1 => '<p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.',
	(int) 2 => '<p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.',
	(int) 3 => '<p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.',
	(int) 4 => '<p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.',
	(int) 5 => '<p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :',
	(int) 6 => '<p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and',
	(int) 7 => '<p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;',
	(int) 8 => '<p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :',
	(int) 9 => '<p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'',
	(int) 10 => '<p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :',
	(int) 11 => '<p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'',
	(int) 12 => '<p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
	(int) 13 => '<p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.',
	(int) 14 => '<p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p>',
	(int) 15 => '<p>'
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'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'

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	'title_for_layout' => 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
			'authreffered' => '',
			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2003(I)OLR324',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Constitution',
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$title_for_layout = 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535981',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
		'authreffered' => '',
		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => '2003(I)OLR324',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Constitution',
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	(int) 0 => '<p>A.K. Patnaik, J.',
	(int) 1 => '<p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.',
	(int) 2 => '<p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.',
	(int) 3 => '<p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.',
	(int) 4 => '<p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.',
	(int) 5 => '<p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :',
	(int) 6 => '<p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and',
	(int) 7 => '<p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;',
	(int) 8 => '<p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :',
	(int) 9 => '<p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'',
	(int) 10 => '<p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :',
	(int) 11 => '<p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'',
	(int) 12 => '<p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
	(int) 13 => '<p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.',
	(int) 14 => '<p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p>',
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It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.

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	'title_for_layout' => 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
			'authreffered' => '',
			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'respondent' => 'State of Orissa and ors.',
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$title_for_layout = 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535981',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
		'authreffered' => '',
		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
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$content = array(
	(int) 0 => '<p>A.K. Patnaik, J.',
	(int) 1 => '<p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.',
	(int) 2 => '<p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.',
	(int) 3 => '<p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.',
	(int) 4 => '<p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.',
	(int) 5 => '<p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :',
	(int) 6 => '<p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and',
	(int) 7 => '<p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;',
	(int) 8 => '<p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :',
	(int) 9 => '<p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'',
	(int) 10 => '<p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :',
	(int) 11 => '<p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'',
	(int) 12 => '<p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
	(int) 13 => '<p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.',
	(int) 14 => '<p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p>',
	(int) 15 => '<p>'
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6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.

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	'title_for_layout' => 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
			'authreffered' => '',
			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2003(I)OLR324',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Constitution',
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$title_for_layout = 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535981',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
		'authreffered' => '',
		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2003(I)OLR324',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
	)
)
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$content = array(
	(int) 0 => '<p>A.K. Patnaik, J.',
	(int) 1 => '<p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.',
	(int) 2 => '<p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.',
	(int) 3 => '<p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.',
	(int) 4 => '<p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.',
	(int) 5 => '<p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :',
	(int) 6 => '<p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and',
	(int) 7 => '<p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;',
	(int) 8 => '<p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :',
	(int) 9 => '<p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'',
	(int) 10 => '<p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :',
	(int) 11 => '<p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'',
	(int) 12 => '<p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
	(int) 13 => '<p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.',
	(int) 14 => '<p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p>',
	(int) 15 => '<p>'
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7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.

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	'title_for_layout' => 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | ',
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			'id' => '535981',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
			'appealno' => 'W.P. (C) No. 5770 of 2002',
			'appellant' => 'Bishi Keshan Pradhan',
			'authreffered' => '',
			'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
			'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
			'caseanalysis' => null,
			'casesref' => 'Kumarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
			'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2003-01-29',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Patnaik, J.</p><p style="text-align: justify;">1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p style="text-align: justify;">2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> with a prayer to quash the same.</p><p style="text-align: justify;">3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p style="text-align: justify;">4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p style="text-align: justify;">5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p style="text-align: justify;">(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p style="text-align: justify;">(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p style="text-align: justify;">The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p style="text-align: justify;">'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p style="text-align: justify;">It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p style="text-align: justify;">'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p style="text-align: justify;">It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p style="text-align: justify;">6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p style="text-align: justify;">7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2003(I)OLR324',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bishi-keshan-pradhan-vs-state-orissa-ors',
	'args' => array(
		(int) 0 => '535981',
		(int) 1 => 'bishi-keshan-pradhan-vs-state-orissa-ors'
	)
)
$title_for_layout = 'Bishi Keshan Pradhan Vs State of Orissa and ors - Citation 535981 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535981',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; <a href="/act/52037/national-security-act-1980-complete-act">National Security Act, 1980</a> - Sections 3(2)',
		'appealno' => 'W.P. (C) No. 5770 of 2002',
		'appellant' => 'Bishi Keshan Pradhan',
		'authreffered' => '',
		'casename' => 'Bishi Keshan Pradhan Vs. State of Orissa and ors.',
		'casenote' => 'Criminal - Detention - Quashing of - Sections 34, 147, 148, 294, 323, 326, 341, 353, 354, 307, 302, 506,  109, 139 of Indian Penal Code, 1860 (IPC and Sections 25 and 27 of Arms Act and Section 3(2) of National Security Act, 1980 - Petitioner was arrested and he was in judicial custody for offences under said Sections - Order of detention passed by Magistrate against petitioner under Section 3(2) of Act - Grounds of detention also served upon petitioner - Petitioner made representation - Rejected - Detention of petitioner was referred to Advisory Board - Advisory Board confirmed detention - Hence, present writ petition - Held, on perusal of order of detention and grounds of detention Court does not find that any satisfaction has been recorded by Magistrate that there is any real possibility of petitioner being released on bail nor his satisfaction recorded that in event petitioner is released on bail he would in all probability indulge in prejudicial activities - Impugned order of detention of petitioner, therefore, cannot be sustained on this ground alone - Writ petition allowed - 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 non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an 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. 
 -  He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. (2) if he has reason to believe on the basis 'of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
		'caseanalysis' => null,
		'casesref' => 'Kumarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'S.P. Mishra, ;S.K. Mishra, ;S.M. Mishra, ;S. Dash, ;S. Nanda, ;M.R. Dash, ;L. Bhuyan and ;S.S. Satpathy',
		'counseldef' => 'M.K. Mohanty, Addl. Govt. Adv. for O.Ps. 1 and 2, ;A. Mohanty, Addl. Standing Counsel (Central) for O.P. 4',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2003-01-29',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Patnaik and ;P.K. Misra, JJ.',
		'judgement' => '<p>A.K. Patnaik, J.</p><p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.</p><p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.</p><p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.</p><p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.</p><p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :</p><p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and</p><p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;</p><p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :</p><p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'</p><p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :</p><p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'</p><p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.</p><p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.</p><p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2003(I)OLR324',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
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$caseref = 'Kumarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>A.K. Patnaik, J.',
	(int) 1 => '<p>1. This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the <a>National Security Act, 1980</a> (for short 'Act, 1980)'.',
	(int) 2 => '<p>2. The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub- jail in connection with Khandapara P.S. Case No. 123 dated 1.12.2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and khandapara P.S. Case No. 63 dated 11.9.2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10.10.2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10.10.2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20.9.2002. The petitioner submitted a representation dated 26.10.2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6.11.2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20.11.2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the <a>Constitution of India</a> with a prayer to quash the same.',
	(int) 3 => '<p>3. Mr. S. P. Mishra, learned counsel for the petitioner submitted that, the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his wareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and Anr. : AIR 1991 Supreme Court, 1640. He also cited the decision of the Supreme Court in Surya Prakash Sharma v. State of U.P. and Ors. : (1995) 9 OCR (SC), 343, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufffcient.',
	(int) 4 => '<p>4. Mr. M. K. Mohanty, learned Additional Government Advocate for the State of Orissa, on the other hand sought to sustain the order of detention on the grounds mentioned in the grounds of detention. He also relied on the counter affidavit filed on behalf of opposite party No. 1 Mr. Amiya Mohanty, learned counsel has appeared for the Union of India.',
	(int) 5 => '<p>5. In Rameshwar Shaw v. District Magistrate, Burdwan (1964 4 SCR 921) quoted in the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others (supra) cited by Mr. Mishra, the Supreme Court dealing with the decisions rendered by the Court till then held that an order of detention can be validly passed against a person if :',
	(int) 6 => '<p>(i) the detaining authority was aware of the fact that the detenu is already in detention; and',
	(int) 7 => '<p>(ii) there was compelling reason justifying such detention despite the fact that the detenu is already in detention;',
	(int) 8 => '<p>The relevant paragraph of the decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) as quoted in the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. [supra) is extracted herein below :',
	(int) 9 => '<p>'The decisions referred to above lead to conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'',
	(int) 10 => '<p>It will thus be clear from the aforesaid decision of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (supra) that the compelling reasons which the detaining authority must show before passing the order of detention in the case where the detenu is already in custody are that on the basis of cogent materials, he is satisfied that the detenu is likely to be released from custody in near future and taking into account the antisocial activities of the detenu, it is likely that after he is released from custody, he would indulge in prejudicial activities and that it is necessary to detain him in order to prevent him from engaging such activities. The aforesaid law as explained by the Supreme Court, way-back in 1964 has been reiterated by the Supreme Court in Kumarunnissa v. Union of India (supra). In the said case the Supreme Court again considered at length the decision of the apex Court on the point right up to 1990 and held :',
	(int) 11 => '<p>'From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis ' of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in- prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court, xxx.'',
	(int) 12 => '<p>It will be clear from the aforesaid decision of the Supreme Court in Kumarunnissa v. Union of India {supra) that in cases where the detenu is already in custody, the detaining authority must show not only his awareness to the fact that the detenue actually is in custody, but also show his satisfaction on the basis of reliable materials that there is real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities and thus, it was necessary to detain him to prevent him from carrying on such prejudicial activities.',
	(int) 13 => '<p>6. So far as the present case is concerned, we find that in the impugned order of detention dated 10.10.2002 the District Magistrate, Nayagarh has shown his awareness to the fact that the petitioner is in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002. But on perusal of the order of detention and the grounds of detention dated 10.10.2002, we do not find that any satisfaction has been recorded by the District Magistrate, Nayagarh that there is any real possibility of the petitioner being released on bail in connection with the aforesaid Khandapara P.S. Case Nos. 123 dated 1.12.2001 and 63 dated 11.9.2002 nor his satisfaction recorded that in the event the petitioner is released on bail he would in all probability indulge in prejudicial activities and for this reason, he felt it essential to detain him to prevent him from carrying on such prejudicial activities. The impugned order of detention of the petitioner, therefore, cannot be sustained on this ground alone and it is not necessary for this Court to deal with the other grounds taken by the petitioner in the writ petition.',
	(int) 14 => '<p>7. In the result, the impugned order of detention dated 10.10.2002 passed by the District Magistrate, Nayagarh in Annexure-1 is quashed. The petitioner be released and set at liberty forthwith unless he is wanted in connection with any other case.<p>',
	(int) 15 => '<p>'
)
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