Case Number: JCRLA No. 34 of 2005
Date of decision:2nd August 2023
Coram: Justice Biswanath Rath, Justice M.S. Sahoo

The appellant challenged the order of conviction dated 3.4.2003 passed by the learned Adhoc Addl. Sessions Judge, Jeypore finding him guilty of committing offence punishable u/s.302 of the IPC. The case of the prosecution was that the accused Sangadi Sania and deceased Gumuraballi Sukra had prior enmity. On 21.07.2000 at 8.00 P.M. in the night, while the deceased and his wife were in their house, the accused came there and called the deceased by saying “Samudhi- Samudhi” and when the deceased came out of the house being followed by his wife, the accused all on a sudden dealt stab blows by a knife on the chest and belly region of the deceased and fled away from the spot. The deceased cried/shouted, as a result of which, the neighbours P.Ws.3 and 4 rushed near him but the deceased immediately fell down on the ground and died at the spot.

The Appellant contended that the evidence adduced by the eye witness is contradictory to the statement made by P.Ws.3, 4 and 5. There is apparent contradiction in the deposition of P.W.3 and P.W.4, who were admittedly post occurrence witnesses. He has further contended that the statement of P.W.5, who is the son of the deceased also creates doubt in the veracity of the evidence adduced by P.W.2 (eye witness). In face of so many contradictions in the statement of witnesses, a conclusion cannot be definitely arrived at that the appellant is the author of the crime. The witnesses were not examined by the prosecution during trial to substantiate the recovery of the weapon of offence.

This Court held that evidence of P.W.2, though has some minor contradictions, remains unimpeached. The deposition of the eye witness cannot be invalidated on the basis of minor contradictions. In view of the law laid down by the Supreme Court in Shahajan Ismail Mohd. Shaikh v. State of Maharashtra 2022 SCC OnLine SC 883in absence of recovery of weapon the appellant can be convicted on basis of testimony of P.W.2.

The further issue before the Court was whether the manner in which the entire incident of assault on the deceased took place, would amount to culpable homicide amounting to murder or culpable homicide not amounting to murder. This Court observed that as per the FIR and evidence of P.W.2 there was no premeditation on the part of the appellantaccused. The nature of weapon used had not been proved before the trial court in proper perspective inasmuch as recovery of the knife and its further use, though was suggested to be the weapon, was not proved by the prosecution. Further, the medical opinion and forensic examination report did not support prosecution case regarding use of knife. As per the evidence adduced by the prosecution, the motives like revenge, greed, jealousy or suspicion were absent on part of the accused. It could not be inferred from the evidence relied on by the prosecution accepted by the learned trial court, that the appellant-accused while inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner. Accordingly, this Court held that the appellant would be entitled for acquittal under Section 302 IPC but would be liable to be convicted under Section 304 Part I of IPC.

Case Number: MATA No.3 of 2019
Date of decision:25th August 2023
Coram: Justice Biswanath Rath, Justice M.S. Sahoo

The appellants before the Court challenged the judgment and order dated 21.11.2018 passed by the learned Judge, Family Court, Berhampur in Civil Proceeding-C.P. No.271 of 2015. The proceeding was filed under Section 6 of the Hindu Minority and Guardianship Act, 1956 by the present respondent-father of the minor girl child, seeking custody of the girlchild who has been staying with her maternal grandmother and maternal uncles, in particular the respondent no.2 and his wife. The wife of respondent died, allegedly, by committing suicide in the house of the respondent. Regarding the future prospect and maintenance of the minor girl child, it was unanimously decided by the family members and other local gentries known to both the parties, to let the child remain in the custody of appellants, who are maternal grandmother and maternal uncles of the girl child, in terms of a written document dated 04.10.2011, by incorporating some terms and conditions therein.

The appellants contended that after death of the mother of the child at the house of the respondent, respondent has never visited the girl child nor has ever paid a single farthing in favour of his daughter. The terms of agreement for welfare of the girl child dated 14.10.2011 has not been complied with by the respondent. The appellants have complied the terms of agreement in the interest of the girl child by executing a gift deed giving land Ac.0.023.

Defending the judgment and order of the learned Judge, Family Court, the respondentpetitioner submitted that he approached the appellants on several occasions to return the minor daughter to his custody. The respondentpetitioner being the father as well as the natural guardian of the girl child not having been successful in getting custody, filed application under Section 6 of the Act, 1956 seeking custody of the child.

This Court held that in selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child; in selecting a guardian, particularly of a minor girl child, this court is exercising parens partiae jurisdiction and is expected nay bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or even more important, essential and indispensable considerations.

Some of the factors those have been taken into consideration by the Court in deciding the custody of the minor girl child are :

stability and consistency in the affairs and routines of the child and any dislocation may cause emotional strain to her as she has been with the appellants since the age of 18 months as an infant; marked eagerness in the child to continue to stay with appellant no.2- respondent and his wife and their children (her siblings) and lack of any inclination to go to the custody of respondent-petitioner; no material was brought before the learned Family Judge to change the custody apart from the fact that the respondent being the father is the natural guardian; it is admitted by the respondent that he never had custody of the child since she was an infant of 18 months and the child grew up remaining in custody of maternal grandmother, maternal uncle and their family; and, the consideration that the custody of the child should not undergo an immediate change has to prevail in the facts and circumstances of the case.

Case Number: W.P.(C) No.11396 of 2019
Date of decision:11th May 2023
Coram: Justice Biswanath Rath, Justice M.S. Sahoo

In this case, the opposite party no.1, the consumer of electricity under the distribution licensee (NESCO Utility) entered into an agreement for supply of electricity since February, 2014 with a contract demand 24 Kilo Watts (KW) in General Purpose (GPS) tariff category through a transformer rated 63 Kilo Volt Ampere (KVA) installed by the consumer with 11 Kilo Volt (KV) supply. The licensee installed a LTCT meter and billed the consumer on the basis of LT tariff determined by the OERC. The consumer filed the Consumer Complaint (CC) No.165 of 2018 under Section 42(5) of the Electricity Act read with relevant provisions of the OERC Distribution (Conditions of Supply) Code, 2004 before the Grievance Redressal Forum (GRF). In the said complaint, the consumer detailed the nature of electricity supply availed and the electrical equipments installed, for such supply the consumer referred to the tariff order of the Financial Year 2005-06 of the OERC. The consumer specifically stated that it had deposited Rs.4,12,055/- towards the capital work of distribution licensee to provide electricity. The GRF held in favour of the consumer.

As the distribution licensee did not implement the order passed by the GRF, as per the mandate of the statute within 30 days, the consumer filed Consumer Representation (C.R.) Case No.41 of 2018 invoking the jurisdiction of the Ombudsman-II, OERC under Section 42(5) of the Electricity Act, 2003 read with OERC Code, 2004 seeking direction for implementation of the order passed by the GRF and issuance of a revised bill by the licensee to the consumer. The Ombudsman upheld the order of the GRF.

This Court held that the matter does not involve any substantial question of law. Apparently, after the order passed by the GRF was not complied within 30 days and the licensee did not challenge the order of the GRF, the consumer moved the Ombudsman for implementation of the order of the GRF. Thereafter, in absence of any challenge to the order of the GRF, the Ombudsman directed for implementation of the order of GRF. Only thereafter, the licensee has chosen to challenge the order of the GRF by filing the writ petition. This Court further held that though the licensee has challenged the order passed by the GRF in the present writ petition filed on 22.07.2019, the licensee in its written reply dated 05.12.2018 before the Ombudsman (as it had not challenged the order of GRF till then) stated and admitted to have implemented the order passed by the GRF to the extent having stopped to collect the transformer loss with effect from 22.08.2016 from the second connection and give adjustment in the energy bill that was annexed marked as Annexure-1 to the reply before the Ombudsman. Further, the licensee stated and conceded before the Ombudsman in its reply, that it would to refund cost of metering unit and HTTV meter of Rs.32,796.07.

Placing reliance on the principles enunciated laid down in MSEDCL v. APML & Others 2023 SCC Online 233, it was held that Court has to be slow in interfering with the findings given by an expert body like Ombudsman-II, OERC and GRF, unless it is found that the expert body has failed to take into consideration the mandatory statutory provisions of the decision taken is based on extraneous considerations or it is ex-facie arbitrary and illegal. This Court held that the Ombudsman had correctly observed that it is not permissible under the existing statutory provision including the OERC (GRF & Ombudsman) Regulation, 2004 for the licensee to choose to partly implement the order and not to implement another part.

Case Number: W.A. No. 601 of 2021
Date of decision: 3rd February 2023
Coram: Justice Jaswant Singh, Justice M S Sahoo

In this case, the appellants (Deputy Inspector General, Central Reserve Police Force (CRPF), Allahabad and the Commandant, 93 Battalion (Bn for short) Central Reserve Police Force, Lamphelpat, Imphal, Manipur) challenged the judgment and order dated 19.02.2021 passed by the learned Single Judge allowing the writ petition: W.P.(C) No. 8777 of 2007 filed by Respondent, whereby part of the order treating the period from 11.04.1999 to 07.11.2006 as “dies non” has been set aside and arrears of salary has been granted for the said period.

Brief facts of the case is that the respondent was on the sentry Guard duty at Morcha No.8 from 1800 hours to 2030 hours on 09.11.1998 when it was raining. There was darkness affecting the visibility making it difficult to recognize the persons approaching him. The appellant challenged the visiting persons and asked them, as per procedure, for password etc to establish their identity, the officer in front of the visiting party was unable to answer to any of the queries of the respondent. Thereafter, faced with such a situation, respondent came out of “Morcha”, loaded his weapon, pointed towards visiting officers approaching him. At that point of time one of the members of the visiting party, namely Head Constable Gulab Singh (P.W.4) disclosed his identity, the respondent unloaded his rifle, immediately apologized and went back to Morcha No.8.

This Court observed that the punishments provided under Rule 27 of the CRPF Act does provide “stoppage of increment” for three years but further deprivation of wages by treating certain period as dies non is not contemplated in the relevant service rules as has been done in the case at hand. The order passed by the learned Single Judge is just and proper and does not require any interference in exercise of the jurisdiction of an intra-court appeal there being no error apparent on the face of the record.

In the opinion of this Court, the question to be answered is whether a human being of ordinary prudence, how much trained he may be, could have reacted differently to the situations described by the inquiring and appellate authorities, thereby terming the response/ behaviour of the respondent to an emergent situation to be misconduct. With that regard, this Court held that the authorities have not delved into such aspect thereby terming the behaviour of the respondent to be misconduct, just by putting the entire assessment of the situation in a straight jacket rendering the assessment very subjective. Further, this Court opined that the framing of charge and the enquiry had failed to take note of the series of serious failure on part of the inspecting party not informing the sentry post regarding their visit in the darkness of a rainy night much after sunset, the visitors not disclosing their identity and password as required when asked by the respondent, coupled with past attack on the unit. Resultantly, the whole chain ultimately triggering the behaviour attributed to the respondent.

This Court further directed that the Respondent- Narayan Chandra Mohapatra should be paid his actual emoluments for the period that was directed to be treated as dies non along with benefits like increments and his salary shall be re-fixed within three months from date of communication of the order.