Sushanta Patra Vs. State of Orissa

Decided On : Nov-19-2007

Court : Orissa

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		'casename' => 'Sushanta Patra Vs. State of Orissa',
		'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. 
',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-11-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.M. Das, J.',
		'judgement' => 'ORDER<p style="text-align: justify;">M.M. Das, J.</p><p style="text-align: justify;">Heard learned Counsel for the petitioner, learned Counsel for the informant and the learned Counsel for the State.</p><p style="text-align: justify;">This is an application under Section 438 Cr.P.C. for grant of anticipatory bail to the petitioner.</p><p style="text-align: justify;">1. Allegation of commission of offence under Sections 498A/34 I.P.C. read with Section 4 of the D.P. Act has been made against the petitioner who is the husband of the informant. Such allegation has been made only after a couple of month from the date of marriage. It appears that the petitioner has filed C.S. No. 722 of 2007 before the Court below under Section 9 of the Hindu Marriage Act for restitution of conjugal rights.</p><p style="text-align: justify;">Learned Counsel for the informant-wife vehemently argues that the petitioner had relationship with another lady and when the informant objected to the same, the petitioner threatened the informant to drive her out of his house.</p><p style="text-align: justify;">Since the civil suit for restitution of conjugal rights is pending, I express no opinion in this regard.</p><p style="text-align: justify;">2. Considering the nature of allegation made against the petitioner, who is stated to be serving as an employee of ICICI Bank, Bhubaneswar, it is directed that in the event of arrest of the petitioner in connection with Soro P.S. Case No. 144 of 2007 corresponding to Crl. Trl. (G.R.) Case No. 284 of 2007 pending in the Court of learned J.M.F.C., Soro, he shall be released on bail on furnishing a bond of Rs. 25,000/-(Rupees twenty five thousand) to the satisfaction of the Arresting Officer subject to further condition that the petitioner shall appear before the Investigating Officer as and when required.</p><p style="text-align: justify;">3. This order shall remain in force till submission of the final form.</p><p style="text-align: justify;">In the event, the charge-sheet is filed, the petitioner, if so advised, may surrender before the Court below and move for regular bail.</p><p style="text-align: justify;">4. The BLAPL is accordingly disposed of. Urgent certified copy of this order be granted on proper application.<p style="text-align: justify;"></p><p style="text-align: justify;">',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'II(2008)DMC110; 2008(I)OLR310',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
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LAW: Section 438 Cr, Sections 498A/34 I.P.C., Section 4, the D.P. Act, Section 9, the Hindu Marriage Act

PERSON: Counsel, Bhubaneswar

ORG: Counsel for the State, C.S. No, Court, Learned Counsel, ICICI Bank, Soro P.S. Case, Crl, Court, Court, BLAPL

GPE: P.C., G.R., J.M.F.C., Soro

DATE: a couple of month, 2007, 2007, 2007

CARDINAL: 722, 144, 284, twenty five thousand