IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLMC No. 1284 of 2023
Application under Section 482 of Criminal Procedure Code,1973.

Mamata Sahoo

Vs

State of Odisha

CORAM:JUSTICE SASHIKANTA MISHRA

The petitioner challenges the order dated 16.02.2023 passed by learned 2nd Additional Sessions Judge, Bhubaneswar in Crl. Appeal No.78 of 2022, whereby her application for stay of further proceedings in CMC No. 1555 of 2022 pending before the Additional Deputy Commissioner of Police-cum- Executive Magistrate, Bhubaneswar was rejected.

2. Shorn of unnecessary details, the facts of the case are that the petitioner filed an appeal against the order passed by learned Executive Magistrate, Bhubaneswar in CMC No. 1555 of 2022 under Section 107 of Cr.P.C. The said appeal has been registered as Criminal Appeal No. 78 of 2022. She also prayed for stay of the proceedings before the learned Executive Magistrate during pendency of the appeal. Such application was rejected by the Court below vide order dated 16.02.2023. While rejecting the application for stay, the Court below held that no power is vested on the appellate Court under Section 373 of Cr.P.C. to grant him consequential and interim relief. Moreover, the legislature has not provided any power to suspend the order passed under Section 117 of Cr.P.C. as such order shall not cause prejudice to any person.

3. It is argued by Mr. S.R. Mohapatra, learned counsel for the petitioner that unless the direction issued by learned Executive Magistrate to the petitioner to execute bond to keep peace in the locality is stayed, it would render the appeal infructuous. He further submits that the power to hear appeal includes the power to grant all consequential relief including the power to stay the operation of the impugned order till disposal of the appeal.

4. Mr. S.K. Mishra, learned Addl. Standing Counsel submits that there is no specific power conferred on the appellate court under Section 373 of Cr.P.C. to grant him consequential relief. He however, fairly submits that unless the operation of the impugned order is stayed, it would render the appeal infructuous.

5. Undisputedly, the appeal has been preferred by the petitioner under Section 373 of Cr.P.C., which reads as under:

“373. Appeal from orders requiring security or refusal to accept or rejecting surety for keeping peace or good behaviour.—Any person,—

(i) who has been ordered under section 117 to give security for keeping the peace or for good behaviour, or

(ii) who is aggrieved by any order refusing to accept or rejecting a surety under section 121, may appeal against such order to the Court of Session:

Provided that nothing in this section shall apply to persons the proceedings against whom are laid before a Sessions Judge in accordance with the provisions of sub-section (2) or sub-section (4) of section 122.”

6. Chapter-XXIX of the Code deals with Appeal in general. Section 372 lays down that no appeal shall lie except as provided for by the Code. Section 373, as already stated, provides for appeal from orders requiring security or refusal to accept or reject surety for keeping peace or good behavior. Section 374 deals with appeals from convictions.

Section 377 relates to appeal by the State Government against sentence and Section 378 relates to appeal in case of acquittal. All other provisions, namely, Section-379, 381, 382, 383, 384, 385, 386, 387, 389 and 391 etc. are general provisions relating to appeals. If the provisions are read carefully it would reveal that where such provision is intended to be applied to appeals filed under specific provisions such as, Section 377 or Section 378 or Section 382 or Section 383 etc. the same have been specifically mentioned in the provision without diluting the general power. For instance, in Section 385, which lays down the procedure for hearing appeals not dismissed summarily, Clause-iv of sub-Section (1) thereof relates to appeals under Section 377 or Section 378. This does not mean that all the other clauses and sub-Sections also relate only to such appeals. Similar reasoning can be adopted in case of the power under Section 386, which reads as follows:

386. Powers of the Appellate Court.—After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may—

(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction—

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same—

(c) in an appeal for enhancement of sentence—

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or, the nature and extent, of the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper:

Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:

Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.

The very use of the words “and in case of an appeal under section 377 or section 378” means that the said provision being generally applicable to all kinds of appeals under Chapter-XXIX also applies to appeals filed under Sections 377 and 378 Cr.P.C. This would be further evident from a reading of clause (d) conferring power on the appellate Court to alter or reverse order passed in an “appeal against any other order”. So, clause (a) relates to appeal from an order of acquittal, clause (b) relates to appeal from a conviction and clause (c) relates to appeal for enhancement of sentence. The expression “appeal from any other order”

in clause (d) is obviously wide enough to include all appeals including those provided under clauses (a), (b) and (c) and therefore, shall include an appeal under Section 373 also.

Clause (e) is a general power available to the Court dealing with all kinds of appeals. Thus, in an appeal under Section 373 of Cr.P.C. the appellate Court has the power to make any consequential or incidental order that may be just or proper. Obviously, this power includes the power to stay the operation of the order impugned in the appeal. The reasoning of the Court below that power given under Section 386 Cr.P.C. is only meant for appeal under Section 377 or 378 Cr.P.C., is clearly erroneous.

7. For the reasons cited above, this Court is of the view that the impugned order passed by the Court below is evidently based on erroneous reading and interpretation of the relevant statutory provisions for which, the same cannot be sustained in the eye of law.

8. Resultantly, the CRLMC is allowed. The impugned order is set aside. It is directed that further proceedings in CMC No. 1555 of 2022 pending before the learned Executive Magistrate, Bhubaneswar shall remain stayed till disposal of the Crl. Appeal No.78 of 2022 by learned 2nd Addl. Sessions Judge, Bhubaneswar.

Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 11th April, 2023