Sridhar Das Vs. State of Orissa and anr. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the 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. - and the right may be exercised in the case of any offence against the body, and in the case of attempts at offences like theft, robbery, mischief or criminal trespass in relation to property. a person has a right to defend himself as well as to defend the property, whether movable or immovable.a. pasayat, j.1. the plea of right of private defence advanced by the accused having been accepted by the learned sessions judge, balasore, the informant has filed this application for revision.2. background facts are that one dasarathi lost his life due to murderous assault by opposite party no. 2 saunta alias ratnakar das. the prosecution version was that the occurrence took place on 26-4-1987 at about 10 a.m. when dasarathi was putting up a fence along with his father sridhar (p. w. 1). the accused protested to such act, and did not allow the deceased to continue, and in the altercation that followed, no words were exchanged and suddenly the accused dealt a lathi blow on the head of the deceased, as a result of which he fell down, was taken to hospitals, and succumbed on the next day. the accused while accepting almost the entire prosecution version, added that the deceased and his father had assaulted him, as a result of which he sustained injuries and with a view to protect himself, in exercise of his right of private defence swung the lathi which unfortunately hit the deceased on the head and therefore, there was no culpability attracted.3. the learned sessions judge accepted the plea of the accused.4. according to the learned counsel for the petitioner, even if it is conceded that the accused had any right of private defence of body and property, after any apprehension of danger to such body and property had ceased, the question of his having acted in furtherance of such right did not arise. it is stated that after the possibility of any assault by the deceased had ceased, further assault cannot be said to be in exercise of the right of private defence. the learned counsel for the accused-opposite party no. 2, however, submits that the right continued so long as the apprehension existed and, therefore, there was no infirmity in the process of reasoning given by the learned sessions judge to warrant any interference.5. the subject-matter of the right of private defence comprises body or property of the person exercising the right, or of any other person; and the right may be exercised in the case of any offence against the body, and in the case of attempts at offences like theft, robbery, mischief or criminal trespass in relation to property. a person has a right to defend himself as well as to defend the property, whether movable or immovable. the right of private defence conferred by section 97 of the indian penal code, 1860 (in short 'ipc'), is subject to the limitations, contained in section 99. the right does not extend to the infliction of more harm than is necessary for the purpose of defence. further, when death is caused, the person, exercising the right, must be under reasonable apprehension of death, or grievous hurt, to himself or to those whom he is protecting, and, in the case of property, the danger to it must be of the kinds specified in section 103. the scope of the right is explained in sections 102 and 105. in essence, the right of private defence rests on three ideas, firstly, there must be more harm inflicted than it is necessary for the purpose of defence; secondly, there must be reasonable apprehension of danger to body; and thirdly, the right does not commence until there is apprehension. the right of self-defence is an important one. no hard and fast rule can be laid down to determine the amount of harm which is legally justifiable and exercise of right of private defence has to be considered on the facts of each case. court has to take into consideration all the surrounding circumstances and the matter should not be weighed in golden scales. (see air 1952 sc 165: (1952 cri lj 848) amjad khan v. state).6. there can be no doubt that, in judging the conduct of a person to prove that he has a right of private defence, allowance has necessarily to be made for his feelings at the relevant time. he is faced with an assault, which causes a reasonable apprehension of death or grievous hurt, and that inevitably creates, in his mind, some excitement and confusion. at such a moment, the uppermost feeling in his mind would be to ward off the danger and to save himself and his property, and so he would naturally be anxious to strike a decisive blow in exercise of his right. it is no doubt true that, in striking a decisive blow, he must not use more force than it appears to be reasonably necessary. but in dealing with the question, as to whether more force is used than what is necessary or justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a court room, for instance, long after the incident has taken place. this view of mine is countenanced by a decision of the supreme court in jai dev v. state of punjab air 1963 sc 612: (1963 (1) cri lj 495).7. here undisputedly the accused has sustained injuries and the existence of such injuries has been duly noticed by the learned sessions judge. he has concluded that the injuries on the accused were as a result of assaults by the deceased and his father. the learned sessions judge has elaborately discussed the evidence to come to a conclusion that the accused was exercising the right of private defence. it is urged by the learned counsel for the petitioner that the learned sessions judge should have held that the circumstances reflected overreaching of such right. as indicated above, it would be not just to weigh with nice precision the question when the exercise of right has to be stopped. the circumstances would very and situations may differ. here the learned sessions judge has come to a view which cannot be termed as unreasonable on the evidence on record. therefore, while exercising the revisional jurisdiction, i am not inclined to interfere with the judgment of the learned sessions judge.8. the revision application accordingly fails and is dismissed.