Biju @ Biraja Prasad Parida and Two ors. 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 averments made in the affidavit sworn by the informant herself, in my considered opinion the chance of conviction in the case is bleak and the ends of justice would be best served if the criminal proceeding is quashed.orderi. mohanty, j.1. heard learned counsel for the petitioners, mr. a.k. jena, learned counsel for opp. party no. 2 and the learned state counsel for the state.2. a prayer has been made in this application under section 482 cr.p.c. to quash the criminal proceeding initiated under bari-ramachandrapur p.s. case no. 35 of 2008, corresponding to g.r. case no. 422 of 2008, pending in the court of the learned s.d.j.m. jajpur.3. from the pleadings in the case, it appears that an f.i.r. was lodged on 8.7.2008 under sections 452, 294, 354, 323, 506/34 i.p.c. and after completion of investigation, charge sheet was filed under sections 452, 294, 354, 323, 379, 506/34 i.p.c.4. learned counsel for the petitioners states that all the offences apart from the offence under section 294 i.p.c. are compoundable in nature and the informant who has entered appearance through mr. jena has filed an affidavit indicating that the matter has been amicably settled between themselves and although the written report was filed by her, she does not want to proceed with the case and seeks withdrawal of the g.r. case registered against the petitioners.5. considering the nature of the allegations made in the f.i.r. and the averments made in the affidavit sworn by the informant herself, in my considered opinion the chance of conviction in the case is bleak and the ends of justice would be best served if the criminal proceeding is quashed.6. accordingly, the crlmc is allowed and the criminal proceeding in g.r. case no. 422 of 2008, pending before the learned s.d.j.m., jajpur is quashed.7. urgent certified copy of this order be granted on proper application.

Judgment:
ORDER

I. Mohanty, J.

1. Heard learned Counsel for the petitioners, Mr. A.K. Jena, learned Counsel for Opp. Party No. 2 and the learned State counsel for the State.

2. A prayer has been made in this application under Section 482 Cr.P.C. to quash the criminal proceeding initiated under Bari-Ramachandrapur P.S. Case No. 35 of 2008, corresponding to G.R. Case No. 422 of 2008, pending in the court of the learned S.D.J.M. Jajpur.

3. From the pleadings in the case, it appears that an F.I.R. was lodged on 8.7.2008 under Sections 452, 294, 354, 323, 506/34 I.P.C. and after completion of investigation, charge sheet was filed under sections 452, 294, 354, 323, 379, 506/34 I.P.C.

4. Learned Counsel for the petitioners states that all the offences apart from the offence under Section 294 I.P.C. are compoundable in nature and the informant who has entered appearance through Mr. Jena has filed an affidavit indicating that the matter has been amicably settled between themselves and although the written report was filed by her, she does not want to proceed with the case and seeks withdrawal of the G.R. Case registered against the petitioners.

5. Considering the nature of the allegations made in the F.I.R. and the averments made in the affidavit sworn by the informant herself, in my considered opinion the chance of conviction in the case is bleak and the ends of justice would be best served if the criminal proceeding is quashed.

6. Accordingly, the CRLMC is allowed and the criminal proceeding in G.R. Case No. 422 of 2008, pending before the learned S.D.J.M., Jajpur is quashed.

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