Khudia @ Khudiram Tudu v. State of Odisha

“Criminal trial is not an IPL T20 match”: Trial Courts cannot mechanically dispose of
criminal trials without giving reasonable time to defence lawyer to prepare for the case.

The Court was hearing an appeal filed by a person convicted under Section 376(2)(l) of the IPC for committing rape upon a disabled girl. The order of conviction was assailed by the appellant primarily on the ground that a new State Defence Counsel (SDC) was appointed by the trial Court to represent the appellant on the date of examination of the victim but no police paper was supplied to him.

Further, it was submitted on behalf of the appellant that the trial Court handed over a copy of the case record to the newly appointed SDC and asked him to go through the same immediately and complete the crossexamination of the victim on that very day itself.

After hearing arguments for both the sides and going through the case records, the Single Bench opined that the engagement of SDC in trial Courts should not be a mere compliance of provision of law or empty formality. While passing order for de novo trial of the case, the Court observed as follows:

“Engaging a new State Defence Counsel without providing him police papers and just asking him to inspect the case record and to crossexamine the victim and also taking consent from him to conclude the cross-examination on that day itself, in my humble view, is a gross illegality and the accused has been seriously prejudiced by such action of the trial Court. A criminal trial is not an IPL T20 match where every ‘substitute player’ can be an ‘impact player’.”

Tikiri Behera v. State of Odisha

“Daughters are worshipped as ‘Devi’”: The Court upheld conviction of
father accused of repeatedly committing rape on daughter.

The Court was hearing an appeal against the order of conviction of the appellant accused of committing various sexual offences, including rape, with his own daughter. It was alleged by the prosecution that the appellant sexually abused his daughter, i.e. the victim on various occasions and the victim could not resist the same as her own guardian was the offender. It was argued on behalf of the appellant that no injury was found on the genitals of the victim which can be said to be suggestive of forced sexual intercourse. However, the Court out-rightly rejected such contention noting that the time gap between the overt act and the medical examination is quite vital and a long gap between the both may cause healing of injuries.

After giving careful consideration to each and every factor raised on behalf of both the parties, the Court found hardly any reason to disturb the findings of the trial Court. It expressed its shock at the ghastly crime committed by a father upon his own daughter and while dismissing the appeal against the order of the trial Court, it observed as follows:

“This degrading act of the appellant stupefies the judicial conscience of this Court as it is unthinkable to even comprehend that in a country where women are traditionally viewed as an incarnation of the God and daughters are worshipped as ‘Devi’, such heinous acts are being committed by a father. A daughter needs a father to be the standard against which she will judge all men. When the father who is the creator of the girl child and supposed to act as her protector, takes the role of the predator, it would be sheer betrayal of someone’s trust and faith and has got serious impact on humanity.”

Nimananda Biswal v. State of Odisha & Ors.

Writ of habeas corpus cannot be issued to trace out of missing persons.

The Court was hearing a writ petition filed by the petitioner seeking to issue a writ in the nature of habeas corpus to trace out her missing daughter who was untraceable since long. He alleged that even though one year had elapsed since the FIR was lodged, but the police authorities did not take any efficacious step to locate the victim.

After considering the facts of the case, the Court expressed apprehension about maintainability of the petition as it seemed to be a case of ‘missing person’. The Bench cited a number of precedents from the Hon’ble Supreme Court as well as the High Court to hold that the writ of habeas corpus cannot be issued in ‘missing person’ cases.

The Court further held that the writ of habeas corpus cannot be issued in casual or routine manner. Though it is a writ of right but it is certainly not a writ of course. It also observed that the writ of habeas corpus is a festinum remedium or a ‘speedy remedy’ and therefore, it can only be invoked in a clear case of ‘illegal confinement’.

Therefore, it was ruled that when illegal confinement of the victim by a person or a group of persons is not established or not apparent from the facts, remedy cannot be sought under this writ.

Partha Sarathi Das v. State of Odisha & Ors.

The Court ordered the State Government to conduct training programs for
Notaries; Directed District Judges to inspect register of Notaries twice a year.

In this case, the Court was hearing a writ petition in the nature of habeas corpus filed by the petitioner to get back the custody of a girl, whom he claimed to be his wife. The petitioner alleged that subsequent to their marriage, the relatives of the girl took her away from his custody after making false promises.

It was submitted on behalf of the petitioner before the Court that he married the girl by executing an affidavit of marriage before a Notary Public. The Court was surprised to see the marriage declaration form executed before the Notary Public, as he is not authorized to register marriages.

Taking judicial cognizance of the matter, the Court referred to Section 8(1) of the Notaries Act, 1952 as well as various judgments rendered by the Hon’ble Supreme Court and the High Court to clarify that Notaries lack authority to register marriage. It further cited the notification of the Law Department dated 18.03.2009 which instructed the Notaries of the State to refrain from issuing marriage certificates.

The Court directed the concerned Notary to appear before it personally and to explain as to under what authority he endorsed the marriage declaration certificate. The Notary duly appeared and pleaded unconditional apology for issuing an extra-legal marriage certificate and filed an affidavit assuring the Court to refrain from repeating the same mistake in the future.

However, noting the lack of awareness among the Notaries about their duties and functional limits, the Court directed the State Government to arrange training programme for all the Notaries of the State on a regular basis, either physical or through virtual mode and also to issue guidelines to apprise them of their functions and duties as has been laid down under Section 8 of the Notaries Act, 1952.

It was also ordered that District Judges or an officer appointed by the Government shall inspect the registers maintained by the Notaries twice a year, as per the provision prescribed under Rule 11(5) of the Notaries Rules, 1956.