Meghanad Bhainsal and ors. Vs. State of Orissa and anr. Semantic Analysis

Semantic Analysis by spaCy

Meghanad Bhainsal and ors. Vs. State of Orissa and anr.

Decided On : Oct-12-2007

Court : Orissa

Notice (8): Undefined index: topics [APP/View/Case/meta.ctp, line 36]Code Context

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			'casenote' => ' - 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. 
 -  is mandatory and as that has not been complied with by the Learned Magistrate, the order of taking cognizance and issuance of process is bad in law and liable to be set aside. Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all the witnesses and examine them on oath. But, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, it is mandatory for him to call upon the complainant to produce all the witnesses and examine them on oath.',
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			'judgement' => '<p style="text-align: justify;">Pradip Mohanty, J.</p><p style="text-align: justify;">1. In this revision, the Petitioners challenge the Order Dated 07.11.2006 passed by the S.D.J.M., Sundargarh taking cognizance of the offence under Sections 302/201/34 IPC against them in I.C.C. Case No. 17 of 2005 instituted by Opposite Party No. 2.</p><p style="text-align: justify;">2. Brief facts of the case is that Opposite Party No. 2 initially lodged an FIR before the OIC, Hemagiri PS. against Petitioner No. 1 and another co-accused, namely, Abhimanyu Patta, with the allegation of murder of his son. Accordingly, Hemagiri P.S. Case No. 36 of 2005 was registered and after investigation final form was submitted against two accused persons, namely, Arjun Bhoi and Ajaya Kumar Mod Bahali. Thereafter, Opposite Party No. 2 filed the above noted complaint case before the S.D.J.M., Sundargarh against the Petitioners and another co-accused Abhimanyu Patta. After registration of the complaint case, the complainant examined himself under Section 200 Cr.P.C. and some of the witnesses mentioned in the complaint petition under Section 202 Cr.P.C. The S.D.J.M., by the impugned order, took cognizance against the Petitioners and another co-accused, namely, Abhimanyu Patta under Sections 302/201/34 IPC and issued process against them for their arrest.</p><p style="text-align: justify;">3. Mr. Mohapatra, Learned Counsel for the Petitioners, submitted that there is non-compliance of the proviso to Sub-section (2) of Section 202 Cr.P.C. as the complainant has not examined all the witnesses mentioned in the complaint petition. Proviso to Sub-section (2) of Section 202 Cr.P.C. is mandatory and as that has not been complied with by the Learned Magistrate, the order of taking cognizance and issuance of process is bad in law and liable to be set aside. He further submitted that there is no material against the Petitioners and in an arbitrary and mechanical manner the S.D.J.M. has taken cognizance and issued process to them. The complainant has developed the prosecution story from stage to stage and there are lots of contradictions appearing in the evidence of the witnesses.</p><p style="text-align: justify;">4. Mr. Jena, Learned Counsel appearing for Opposite Party No. 2 supported the impugned order passed by the S.D.J.M. He submitted that it is the duty of the Court while taking cognizance to see whether prima facie case exists to proceed against the accused persons. He further submitted that 'sufficient grounds' means prima facie case and does not mean sufficient ground for conviction.</p><p style="text-align: justify;">5. The contention raised by Mr. Mohapatra has some force with regard to non-compliance of Section 202(2) Cr.P.C. The question is whether the Magistrate should have examined all the witnesses of the prosecution before the case was committed to the Court of Session or before process was issued to the accused. For ready reference, Sub-section (2) of Section 202 is quoted below:</p><p style="text-align: justify;">202. Postponement of issue of process.-</p><p style="text-align: justify;">(1) xx xx(2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath:Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all the witnesses and examine them on oath. </p><p style="text-align: justify;">From the bare reading of the proviso to Sub-section (2) of Section 202 Cr.P.C. it is crystal clear that during inquiry, the Magistrate may, if he thinks fit, take evidence of witneses on oath. But, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, it is mandatory for him to call upon the complainant to produce all the witnesses and examine them on oath. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial. This principle has been decided by the Hon'ble Apex Court in Rosy v. State of Kerala (2000) 18 OCR (SC) 490; and by this Court in Sangram Keshan' Mishra v. Niranjan Senapati (2000) 18 OCR 764.</p><p style="text-align: justify;">6. In the instant case, admittedly eight witnesses have been examined by the complainant including the doctors and a memo has been filed by the complainant declining to examine other witnesses. After considering the statement of the witnesses, since there existed prima facie evidence against the Petitioners, the S.D.J.M. took cognizance and issued process against them. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the time of trial. It is the settled principle of law that at the stage of issuing process the Magistrate is not required to enter into detailed discussions about the merits or demerits of the case, that is to say, whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists a prima facie case or whether there is sufficient ground for proceeding against the accused or not. Since prima facie case was found to be made out, no illegality has been committed by the S.D.J.M. at the stage of enquiry under Section 202 Cr.P.C. Therefore, the impugned order of the S.D.J.M. is not required to be disturbed.</p><p style="text-align: justify;">The revision is accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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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. 
 -  is mandatory and as that has not been complied with by the Learned Magistrate, the order of taking cognizance and issuance of process is bad in law and liable to be set aside. Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all the witnesses and examine them on oath. But, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, it is mandatory for him to call upon the complainant to produce all the witnesses and examine them on oath.',
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		'judgement' => '<p style="text-align: justify;">Pradip Mohanty, J.</p><p style="text-align: justify;">1. In this revision, the Petitioners challenge the Order Dated 07.11.2006 passed by the S.D.J.M., Sundargarh taking cognizance of the offence under Sections 302/201/34 IPC against them in I.C.C. Case No. 17 of 2005 instituted by Opposite Party No. 2.</p><p style="text-align: justify;">2. Brief facts of the case is that Opposite Party No. 2 initially lodged an FIR before the OIC, Hemagiri PS. against Petitioner No. 1 and another co-accused, namely, Abhimanyu Patta, with the allegation of murder of his son. Accordingly, Hemagiri P.S. Case No. 36 of 2005 was registered and after investigation final form was submitted against two accused persons, namely, Arjun Bhoi and Ajaya Kumar Mod Bahali. Thereafter, Opposite Party No. 2 filed the above noted complaint case before the S.D.J.M., Sundargarh against the Petitioners and another co-accused Abhimanyu Patta. After registration of the complaint case, the complainant examined himself under Section 200 Cr.P.C. and some of the witnesses mentioned in the complaint petition under Section 202 Cr.P.C. The S.D.J.M., by the impugned order, took cognizance against the Petitioners and another co-accused, namely, Abhimanyu Patta under Sections 302/201/34 IPC and issued process against them for their arrest.</p><p style="text-align: justify;">3. Mr. Mohapatra, Learned Counsel for the Petitioners, submitted that there is non-compliance of the proviso to Sub-section (2) of Section 202 Cr.P.C. as the complainant has not examined all the witnesses mentioned in the complaint petition. Proviso to Sub-section (2) of Section 202 Cr.P.C. is mandatory and as that has not been complied with by the Learned Magistrate, the order of taking cognizance and issuance of process is bad in law and liable to be set aside. He further submitted that there is no material against the Petitioners and in an arbitrary and mechanical manner the S.D.J.M. has taken cognizance and issued process to them. The complainant has developed the prosecution story from stage to stage and there are lots of contradictions appearing in the evidence of the witnesses.</p><p style="text-align: justify;">4. Mr. Jena, Learned Counsel appearing for Opposite Party No. 2 supported the impugned order passed by the S.D.J.M. He submitted that it is the duty of the Court while taking cognizance to see whether prima facie case exists to proceed against the accused persons. He further submitted that 'sufficient grounds' means prima facie case and does not mean sufficient ground for conviction.</p><p style="text-align: justify;">5. The contention raised by Mr. Mohapatra has some force with regard to non-compliance of Section 202(2) Cr.P.C. The question is whether the Magistrate should have examined all the witnesses of the prosecution before the case was committed to the Court of Session or before process was issued to the accused. For ready reference, Sub-section (2) of Section 202 is quoted below:</p><p style="text-align: justify;">202. Postponement of issue of process.-</p><p style="text-align: justify;">(1) xx xx(2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath:Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all the witnesses and examine them on oath. </p><p style="text-align: justify;">From the bare reading of the proviso to Sub-section (2) of Section 202 Cr.P.C. it is crystal clear that during inquiry, the Magistrate may, if he thinks fit, take evidence of witneses on oath. But, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, it is mandatory for him to call upon the complainant to produce all the witnesses and examine them on oath. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial. This principle has been decided by the Hon'ble Apex Court in Rosy v. State of Kerala (2000) 18 OCR (SC) 490; and by this Court in Sangram Keshan' Mishra v. Niranjan Senapati (2000) 18 OCR 764.</p><p style="text-align: justify;">6. In the instant case, admittedly eight witnesses have been examined by the complainant including the doctors and a memo has been filed by the complainant declining to examine other witnesses. After considering the statement of the witnesses, since there existed prima facie evidence against the Petitioners, the S.D.J.M. took cognizance and issued process against them. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the time of trial. It is the settled principle of law that at the stage of issuing process the Magistrate is not required to enter into detailed discussions about the merits or demerits of the case, that is to say, whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists a prima facie case or whether there is sufficient ground for proceeding against the accused or not. Since prima facie case was found to be made out, no illegality has been committed by the S.D.J.M. at the stage of enquiry under Section 202 Cr.P.C. Therefore, the impugned order of the S.D.J.M. is not required to be disturbed.</p><p style="text-align: justify;">The revision is accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'casename' => 'Meghanad Bhainsal and ors. Vs. State of Orissa and anr.',
			'casenote' => ' - 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. 
 -  is mandatory and as that has not been complied with by the Learned Magistrate, the order of taking cognizance and issuance of process is bad in law and liable to be set aside. Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all the witnesses and examine them on oath. But, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, it is mandatory for him to call upon the complainant to produce all the witnesses and examine them on oath.',
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			'judgement' => '<p style="text-align: justify;">Pradip Mohanty, J.</p><p style="text-align: justify;">1. In this revision, the Petitioners challenge the Order Dated 07.11.2006 passed by the S.D.J.M., Sundargarh taking cognizance of the offence under Sections 302/201/34 IPC against them in I.C.C. Case No. 17 of 2005 instituted by Opposite Party No. 2.</p><p style="text-align: justify;">2. Brief facts of the case is that Opposite Party No. 2 initially lodged an FIR before the OIC, Hemagiri PS. against Petitioner No. 1 and another co-accused, namely, Abhimanyu Patta, with the allegation of murder of his son. Accordingly, Hemagiri P.S. Case No. 36 of 2005 was registered and after investigation final form was submitted against two accused persons, namely, Arjun Bhoi and Ajaya Kumar Mod Bahali. Thereafter, Opposite Party No. 2 filed the above noted complaint case before the S.D.J.M., Sundargarh against the Petitioners and another co-accused Abhimanyu Patta. After registration of the complaint case, the complainant examined himself under Section 200 Cr.P.C. and some of the witnesses mentioned in the complaint petition under Section 202 Cr.P.C. The S.D.J.M., by the impugned order, took cognizance against the Petitioners and another co-accused, namely, Abhimanyu Patta under Sections 302/201/34 IPC and issued process against them for their arrest.</p><p style="text-align: justify;">3. Mr. Mohapatra, Learned Counsel for the Petitioners, submitted that there is non-compliance of the proviso to Sub-section (2) of Section 202 Cr.P.C. as the complainant has not examined all the witnesses mentioned in the complaint petition. Proviso to Sub-section (2) of Section 202 Cr.P.C. is mandatory and as that has not been complied with by the Learned Magistrate, the order of taking cognizance and issuance of process is bad in law and liable to be set aside. He further submitted that there is no material against the Petitioners and in an arbitrary and mechanical manner the S.D.J.M. has taken cognizance and issued process to them. The complainant has developed the prosecution story from stage to stage and there are lots of contradictions appearing in the evidence of the witnesses.</p><p style="text-align: justify;">4. Mr. Jena, Learned Counsel appearing for Opposite Party No. 2 supported the impugned order passed by the S.D.J.M. He submitted that it is the duty of the Court while taking cognizance to see whether prima facie case exists to proceed against the accused persons. He further submitted that 'sufficient grounds' means prima facie case and does not mean sufficient ground for conviction.</p><p style="text-align: justify;">5. The contention raised by Mr. Mohapatra has some force with regard to non-compliance of Section 202(2) Cr.P.C. The question is whether the Magistrate should have examined all the witnesses of the prosecution before the case was committed to the Court of Session or before process was issued to the accused. For ready reference, Sub-section (2) of Section 202 is quoted below:</p><p style="text-align: justify;">202. Postponement of issue of process.-</p><p style="text-align: justify;">(1) xx xx(2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath:Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all the witnesses and examine them on oath. </p><p style="text-align: justify;">From the bare reading of the proviso to Sub-section (2) of Section 202 Cr.P.C. it is crystal clear that during inquiry, the Magistrate may, if he thinks fit, take evidence of witneses on oath. But, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, it is mandatory for him to call upon the complainant to produce all the witnesses and examine them on oath. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial. This principle has been decided by the Hon'ble Apex Court in Rosy v. State of Kerala (2000) 18 OCR (SC) 490; and by this Court in Sangram Keshan' Mishra v. Niranjan Senapati (2000) 18 OCR 764.</p><p style="text-align: justify;">6. In the instant case, admittedly eight witnesses have been examined by the complainant including the doctors and a memo has been filed by the complainant declining to examine other witnesses. After considering the statement of the witnesses, since there existed prima facie evidence against the Petitioners, the S.D.J.M. took cognizance and issued process against them. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the time of trial. It is the settled principle of law that at the stage of issuing process the Magistrate is not required to enter into detailed discussions about the merits or demerits of the case, that is to say, whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists a prima facie case or whether there is sufficient ground for proceeding against the accused or not. Since prima facie case was found to be made out, no illegality has been committed by the S.D.J.M. at the stage of enquiry under Section 202 Cr.P.C. Therefore, the impugned order of the S.D.J.M. is not required to be disturbed.</p><p style="text-align: justify;">The revision is accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casenote' => ' - 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. 
 -  is mandatory and as that has not been complied with by the Learned Magistrate, the order of taking cognizance and issuance of process is bad in law and liable to be set aside. Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all the witnesses and examine them on oath. But, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, it is mandatory for him to call upon the complainant to produce all the witnesses and examine them on oath.',
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		'judge' => ' Pradip Mohanty, J.',
		'judgement' => '<p style="text-align: justify;">Pradip Mohanty, J.</p><p style="text-align: justify;">1. In this revision, the Petitioners challenge the Order Dated 07.11.2006 passed by the S.D.J.M., Sundargarh taking cognizance of the offence under Sections 302/201/34 IPC against them in I.C.C. Case No. 17 of 2005 instituted by Opposite Party No. 2.</p><p style="text-align: justify;">2. Brief facts of the case is that Opposite Party No. 2 initially lodged an FIR before the OIC, Hemagiri PS. against Petitioner No. 1 and another co-accused, namely, Abhimanyu Patta, with the allegation of murder of his son. Accordingly, Hemagiri P.S. Case No. 36 of 2005 was registered and after investigation final form was submitted against two accused persons, namely, Arjun Bhoi and Ajaya Kumar Mod Bahali. Thereafter, Opposite Party No. 2 filed the above noted complaint case before the S.D.J.M., Sundargarh against the Petitioners and another co-accused Abhimanyu Patta. After registration of the complaint case, the complainant examined himself under Section 200 Cr.P.C. and some of the witnesses mentioned in the complaint petition under Section 202 Cr.P.C. The S.D.J.M., by the impugned order, took cognizance against the Petitioners and another co-accused, namely, Abhimanyu Patta under Sections 302/201/34 IPC and issued process against them for their arrest.</p><p style="text-align: justify;">3. Mr. Mohapatra, Learned Counsel for the Petitioners, submitted that there is non-compliance of the proviso to Sub-section (2) of Section 202 Cr.P.C. as the complainant has not examined all the witnesses mentioned in the complaint petition. Proviso to Sub-section (2) of Section 202 Cr.P.C. is mandatory and as that has not been complied with by the Learned Magistrate, the order of taking cognizance and issuance of process is bad in law and liable to be set aside. He further submitted that there is no material against the Petitioners and in an arbitrary and mechanical manner the S.D.J.M. has taken cognizance and issued process to them. The complainant has developed the prosecution story from stage to stage and there are lots of contradictions appearing in the evidence of the witnesses.</p><p style="text-align: justify;">4. Mr. Jena, Learned Counsel appearing for Opposite Party No. 2 supported the impugned order passed by the S.D.J.M. He submitted that it is the duty of the Court while taking cognizance to see whether prima facie case exists to proceed against the accused persons. He further submitted that 'sufficient grounds' means prima facie case and does not mean sufficient ground for conviction.</p><p style="text-align: justify;">5. The contention raised by Mr. Mohapatra has some force with regard to non-compliance of Section 202(2) Cr.P.C. The question is whether the Magistrate should have examined all the witnesses of the prosecution before the case was committed to the Court of Session or before process was issued to the accused. For ready reference, Sub-section (2) of Section 202 is quoted below:</p><p style="text-align: justify;">202. Postponement of issue of process.-</p><p style="text-align: justify;">(1) xx xx(2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath:Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all the witnesses and examine them on oath. </p><p style="text-align: justify;">From the bare reading of the proviso to Sub-section (2) of Section 202 Cr.P.C. it is crystal clear that during inquiry, the Magistrate may, if he thinks fit, take evidence of witneses on oath. But, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, it is mandatory for him to call upon the complainant to produce all the witnesses and examine them on oath. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial. This principle has been decided by the Hon'ble Apex Court in Rosy v. State of Kerala (2000) 18 OCR (SC) 490; and by this Court in Sangram Keshan' Mishra v. Niranjan Senapati (2000) 18 OCR 764.</p><p style="text-align: justify;">6. In the instant case, admittedly eight witnesses have been examined by the complainant including the doctors and a memo has been filed by the complainant declining to examine other witnesses. After considering the statement of the witnesses, since there existed prima facie evidence against the Petitioners, the S.D.J.M. took cognizance and issued process against them. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the time of trial. It is the settled principle of law that at the stage of issuing process the Magistrate is not required to enter into detailed discussions about the merits or demerits of the case, that is to say, whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists a prima facie case or whether there is sufficient ground for proceeding against the accused or not. Since prima facie case was found to be made out, no illegality has been committed by the S.D.J.M. at the stage of enquiry under Section 202 Cr.P.C. Therefore, the impugned order of the S.D.J.M. is not required to be disturbed.</p><p style="text-align: justify;">The revision is accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'pubs' => '105(2008)CLT55',
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LAW: Section 200 Cr, Section 202, Section 202, Section 202, Section 202(2, Section 202, Section 202, Section 202

NORP: J.1, Petitioners

ORG: S.D.J.M., Sections 302/201/34 IPC, Opposite Party, Opposite Party, FIR, OIC, Hemagiri P.S. Case, Arjun Bhoi and Ajaya, Opposite Party, S.D.J.M., Sundargarh, Petitioners, S.D.J.M., Petitioners, Abhimanyu Patta under, IPC, Learned Counsel, Petitioners, the Learned Magistrate, Petitioners, S.D.J.M., Learned Counsel, Opposite Party, S.D.J.M., Court, Magistrate, the Court of Session, process.-(1, Magistrate, Magistrate, the Court of Session, Magistrate, Magistrate, the Court of Session, the Sessions Court, the Hon'ble Apex Court, OCR, SC, Court, Mishra v. Niranjan Senapati, Petitioners, S.D.J.M., Magistrate, S.D.J.M., S.D.J.M.

WORK_OF_ART: I.C.C. Case No.

CARDINAL: 17, 2.2, 2, 1, two, 2, 2, 2, 2, 2, 1, 2, 18, 490, 18, eight

PERSON: Hemagiri PS, Abhimanyu Patta, Kumar Mod Bahali, Abhimanyu Patta, Mohapatra, Jena, Mohapatra

GPE: P.C., P.C., P.C., P.C., Rosy v. State, Kerala

DATE: 2000, 2000