Dibakar Bhoi Vs. State of Orissa and Three ors.

Decided On : Jun-19-2008

Court : Orissa

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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. 
 -  , he was satisfied that there was apprehension of breach of peace in the locality due to political dispute between the parties and accordingly, issued notice to the present petitioner asking to her to show cause as to why she would not execute a bond for Rs. Ved Murty 1971CriLJ1715 as well as in the case of Chandramani Nayak (supra), it is clearly stated that the Magistrate is under legal obligation to conduct an enquiry to satisfy himself that there is necessity of initiating a proceeding under Section 107, Cr. clearly states that in the show cause notice, the Magistrate has to indicate the incidents and the reasons for which he apprehends breach of peace in the area, in order to enable the delinquent to offer his/her show cause on the subject.',
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			'judgement' => 'ORDER<p style="text-align: justify;">A.K. Parichha, J.</p><p style="text-align: justify;">1. Heard learned Counsel for the parties. The petitioner, who has been arrayed as a delinquent in CMC No. 467 of 2007 in the court of learned Executive Magistrate, Criminal Court, Baripada, has filed this petition challenging the order initiating the proceeding under Section 107, Cr.P.C. against her basically on the plea that the Executive Magistrate before initiating the proceeding and issuing show cause notice did not undertake any inquiry for his satisfaction and that relying only on the police report he initiated the proceeding and issued show cause notice.</p><p style="text-align: justify;">2. Mr. Bhoi, learned Counsel for the petitioner relying on the case of Chandramani Nayak v. State : 1991(II)OLR111 reiterates the stand of the petitioner.</p><p style="text-align: justify;">3. Mr. Pradhan, learned Counsel for opposite parties, on the other hand, supports the impugned order and notice Annexure-1 and 2.</p><p style="text-align: justify;">4. The order of the Executive Magistrate dated 14.08.2007 initiating the proceeding under Section 107, Cr.P.C. reveal that on perusal of the P.R. submitted by the I.I.C., Rasgobindapur P.S., he was satisfied that there was apprehension of breach of peace in the locality due to political dispute between the parties and accordingly, issued notice to the present petitioner asking to her to show cause as to why she would not execute a bond for Rs. 5,000/- for keeping peace of a period of one year. In the case of Madhu Limaye v. Ved Murty : 1971CriLJ1715 as well as in the case of Chandramani Nayak (supra), it is clearly stated that the Magistrate is under legal obligation to conduct an enquiry to satisfy himself that there is necessity of initiating a proceeding under Section 107, Cr.P.C. and that he cannot initiate such a proceeding simply basing on a police report. Section 111 of the Cr.P.C. clearly states that in the show cause notice, the Magistrate has to indicate the incidents and the reasons for which he apprehends breach of peace in the area, in order to enable the delinquent to offer his/her show cause on the subject. The impugned order and the notice in the present case do not fulfil this demand. That being so, the impugned order and notice have to be quashed.</p><p style="text-align: justify;">5. The impugned order and notice as at Annexure-1 and 2 are accordingly quashed, but the Magistrate or the police authority are not debarred to undertake proceeding, according to the mandates of law, if contingency still exists.<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. 
 -  , he was satisfied that there was apprehension of breach of peace in the locality due to political dispute between the parties and accordingly, issued notice to the present petitioner asking to her to show cause as to why she would not execute a bond for Rs. Ved Murty 1971CriLJ1715 as well as in the case of Chandramani Nayak (supra), it is clearly stated that the Magistrate is under legal obligation to conduct an enquiry to satisfy himself that there is necessity of initiating a proceeding under Section 107, Cr. clearly states that in the show cause notice, the Magistrate has to indicate the incidents and the reasons for which he apprehends breach of peace in the area, in order to enable the delinquent to offer his/her show cause on the subject.',
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 -  , he was satisfied that there was apprehension of breach of peace in the locality due to political dispute between the parties and accordingly, issued notice to the present petitioner asking to her to show cause as to why she would not execute a bond for Rs. Ved Murty 1971CriLJ1715 as well as in the case of Chandramani Nayak (supra), it is clearly stated that the Magistrate is under legal obligation to conduct an enquiry to satisfy himself that there is necessity of initiating a proceeding under Section 107, Cr. clearly states that in the show cause notice, the Magistrate has to indicate the incidents and the reasons for which he apprehends breach of peace in the area, in order to enable the delinquent to offer his/her show cause on the subject.',
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			'judgement' => 'ORDER<p style="text-align: justify;">A.K. Parichha, J.</p><p style="text-align: justify;">1. Heard learned Counsel for the parties. The petitioner, who has been arrayed as a delinquent in CMC No. 467 of 2007 in the court of learned Executive Magistrate, Criminal Court, Baripada, has filed this petition challenging the order initiating the proceeding under Section 107, Cr.P.C. against her basically on the plea that the Executive Magistrate before initiating the proceeding and issuing show cause notice did not undertake any inquiry for his satisfaction and that relying only on the police report he initiated the proceeding and issued show cause notice.</p><p style="text-align: justify;">2. Mr. Bhoi, learned Counsel for the petitioner relying on the case of Chandramani Nayak v. State : 1991(II)OLR111 reiterates the stand of the petitioner.</p><p style="text-align: justify;">3. Mr. Pradhan, learned Counsel for opposite parties, on the other hand, supports the impugned order and notice Annexure-1 and 2.</p><p style="text-align: justify;">4. The order of the Executive Magistrate dated 14.08.2007 initiating the proceeding under Section 107, Cr.P.C. reveal that on perusal of the P.R. submitted by the I.I.C., Rasgobindapur P.S., he was satisfied that there was apprehension of breach of peace in the locality due to political dispute between the parties and accordingly, issued notice to the present petitioner asking to her to show cause as to why she would not execute a bond for Rs. 5,000/- for keeping peace of a period of one year. In the case of Madhu Limaye v. Ved Murty : 1971CriLJ1715 as well as in the case of Chandramani Nayak (supra), it is clearly stated that the Magistrate is under legal obligation to conduct an enquiry to satisfy himself that there is necessity of initiating a proceeding under Section 107, Cr.P.C. and that he cannot initiate such a proceeding simply basing on a police report. Section 111 of the Cr.P.C. clearly states that in the show cause notice, the Magistrate has to indicate the incidents and the reasons for which he apprehends breach of peace in the area, in order to enable the delinquent to offer his/her show cause on the subject. The impugned order and the notice in the present case do not fulfil this demand. That being so, the impugned order and notice have to be quashed.</p><p style="text-align: justify;">5. The impugned order and notice as at Annexure-1 and 2 are accordingly quashed, but the Magistrate or the police authority are not debarred to undertake proceeding, according to the mandates of law, if contingency still exists.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Dibakar Bhoi',
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		'casename' => 'Dibakar Bhoi Vs. State of Orissa and Three ors.',
		'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. 
 -  , he was satisfied that there was apprehension of breach of peace in the locality due to political dispute between the parties and accordingly, issued notice to the present petitioner asking to her to show cause as to why she would not execute a bond for Rs. Ved Murty 1971CriLJ1715 as well as in the case of Chandramani Nayak (supra), it is clearly stated that the Magistrate is under legal obligation to conduct an enquiry to satisfy himself that there is necessity of initiating a proceeding under Section 107, Cr. clearly states that in the show cause notice, the Magistrate has to indicate the incidents and the reasons for which he apprehends breach of peace in the area, in order to enable the delinquent to offer his/her show cause on the subject.',
		'caseanalysis' => null,
		'casesref' => 'Madhu Limaye v. Ved Murty;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2008-06-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' A.K. Parichha, J.',
		'judgement' => 'ORDER<p style="text-align: justify;">A.K. Parichha, J.</p><p style="text-align: justify;">1. Heard learned Counsel for the parties. The petitioner, who has been arrayed as a delinquent in CMC No. 467 of 2007 in the court of learned Executive Magistrate, Criminal Court, Baripada, has filed this petition challenging the order initiating the proceeding under Section 107, Cr.P.C. against her basically on the plea that the Executive Magistrate before initiating the proceeding and issuing show cause notice did not undertake any inquiry for his satisfaction and that relying only on the police report he initiated the proceeding and issued show cause notice.</p><p style="text-align: justify;">2. Mr. Bhoi, learned Counsel for the petitioner relying on the case of Chandramani Nayak v. State : 1991(II)OLR111 reiterates the stand of the petitioner.</p><p style="text-align: justify;">3. Mr. Pradhan, learned Counsel for opposite parties, on the other hand, supports the impugned order and notice Annexure-1 and 2.</p><p style="text-align: justify;">4. The order of the Executive Magistrate dated 14.08.2007 initiating the proceeding under Section 107, Cr.P.C. reveal that on perusal of the P.R. submitted by the I.I.C., Rasgobindapur P.S., he was satisfied that there was apprehension of breach of peace in the locality due to political dispute between the parties and accordingly, issued notice to the present petitioner asking to her to show cause as to why she would not execute a bond for Rs. 5,000/- for keeping peace of a period of one year. In the case of Madhu Limaye v. Ved Murty : 1971CriLJ1715 as well as in the case of Chandramani Nayak (supra), it is clearly stated that the Magistrate is under legal obligation to conduct an enquiry to satisfy himself that there is necessity of initiating a proceeding under Section 107, Cr.P.C. and that he cannot initiate such a proceeding simply basing on a police report. Section 111 of the Cr.P.C. clearly states that in the show cause notice, the Magistrate has to indicate the incidents and the reasons for which he apprehends breach of peace in the area, in order to enable the delinquent to offer his/her show cause on the subject. The impugned order and the notice in the present case do not fulfil this demand. That being so, the impugned order and notice have to be quashed.</p><p style="text-align: justify;">5. The impugned order and notice as at Annexure-1 and 2 are accordingly quashed, but the Magistrate or the police authority are not debarred to undertake proceeding, according to the mandates of law, if contingency still exists.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: Section 107, Section 107, Section 107

PERSON: Parichha, Bhoi, Pradhan, Limaye, Ved Murty, Magistrate

NORP: J.1, Chandramani

ORG: CMC, Executive Magistrate, Criminal Court, the Executive Magistrate, the Executive Magistrate, P.R., Rasgobindapur P.S., Chandramani Nayak, Magistrate, Magistrate

CARDINAL: 467, 1991(II)OLR111, 2.4, 14.08.2007, 5,000/-, 2

GPE: Baripada, Cr, P.C., Counsel, Cr, P.C., Madhu, Cr, P.C., P.C.

DATE: one year