Sri Akhaya Guru and Three ors. Vs. Rabindra Kumar Mallik - 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. - ' 4. the above quoted ratio makes it clear that the impugned order of cognizance without an order of commitment is bad in law and not maintainable.p.k. tripathy, j.1. this case registered on an application under section 482 of the code of criminal procedure, 1973 (in short, the code') is at the instance of the accused persons in i.c.c. no. 2 of 1998 of the court of special judge, jajpur, they challenge the order of the cognizance passed on 24.3.1998 by learned addl. sessions judge-cum-special judge. jajpur besides the order in allowing representation for one date on the application under section 205 of the code filed by accused-petitioner pravati guru as per order of the special judge on 20.7.1998.2. this application under section 482 of the code was heard along with a batch of criminal misc. cases, where orders of cognizance have been challenged on the grounds of non-compliance of the provision in rule 7 of the scheduled castes and scheduled tribes (prevention of atrocities) rules, 1995 (in short, 'the rules'). the issue involved in this case being different, this case is disposed of separately as per the following order.3. certified copy of the order-sheet in i.c.c. no. 2 of 1998 shows that on 21.3.1998 complaint was directly filed in the court of special judge, jajpur complaining of offences inter alia under section 3 of the scheduled castes and scheduled tribes (prevention of atrocities) act, 1989 (in short, 'the act'), and learned special judge on 24.3.1998 took cognizance of that offence after examining the complainant/opposite party. though various contentions have been raised by the petitioner challenging legality and maintainability of the order of cognizance and issue of process under section 204 of the code, but this application is disposed of at the stage of hearing on admission without issuing notice to the opposite party for the simple reason that the ratio in the case of gangula ashok and anr. v. state of a.p., (2000) 18 ocr (sc) 364, mandates that: '16. hence we have no doubt that a special court under this act is essentially a court of session and it can take cognizance of the offence when the case is committed to it by the magistrate in accordance with the provisions of the code. in other words, a complaint or a charge sheet cannot straight way be laid before the special court under the act.'4. the above quoted ratio makes it clear that the impugned order of cognizance without an order of commitment is bad in law and not maintainable. thus, the order of cognizance and issue of process vide the impugned order dated 24.3.1998 is illegal and accordingly the same is quashed. it will be appropriate for the special judge to send the complaint to the court of the magistrate who has territorial jurisdiction to deal with such complaint. upon receipt of the complaint, such magistrate shall proceed with the case in accordance with law. after serving notice on the complainant, ball bonds filed by the petitioners in the court of special judge, jajpur shall stand discharged.the criminal misc. case is accordingly allowed.