JUSTICE GOURISHANKAR SATAPATHY

Bikram Pradhan v. State of Orissa and Anr.

Case Number: CRLMC No. 533 of 2016

Date of Judgement: 10th November 2022

In this case, the Petitioner had preferred a petition under Section 482 of CrPC to quash the cognizance of offence U/S. 436 of the IPC by the S.D.J.M., Rairakhol. The facts in a nutshell are that the house of the Petitioner’s brother (Rajkishore Pradhan) was burned down and consequently, he filed a FIR naming four of his brothers as primary suspect which included the Petitioner.

The question that arose was whether the initial statement of complainant together with the statement of witnesses on given facts of the complaint disclose commission of offence U/S.436 of IPC or any other offence and there is sufficient ground for proceeding against the petitioner. The Court observed that there is no direct allegation against the petitioner either in the FIR or in the complaint to evidence that he set fire to the dwelling house of the informant/Rajkishore Pradhan. The uncontroverted facts as per the FIR disclose that the petitioner was found asking others in presence of Antaryami Pradhan and Satrughan Roul as to why they were dousing the fire, when his own brother (informant) has set his own house on fire, but in the complaint, it is stated that the petitioner had prevented others from extinguishing the fire in presence of Antaryami Pradhan and Satrughan Roul. Consequently, the two witness Antaryami Pradhan and Satrughan Roul were examined and they both say that the Petitioner was only found saying as to why they were dousing off the fire.

The Court further found that based on the materials on record, it can be observed that no one saw the petitioner setting fire to the house of the informant-complainant nor was it alleged against him for setting fire to the house of the informant and the only allegation forthcoming against him is that he was saying to others as to why they were extinguishing the fire. The Court also reffered to Section 436 of IPC and listed out three important factors which includes the following (i) mischief must have been committed by someone, (ii) such mischief must have been done by fire or explosive substance and (iii) mischief must be preceded by mens rea or knowledge to destroy the house. The Court also reffered to Section 425 of IPC to understand the meaning of the term “Mischief” and observed that Mischief involves a mental/physical act accompanied with a destructive animus, and such destruction is with the object of causing wrongful loss or damage. On the other hand, negligence does not necessarily amount to mischief, but negligence with mens rea to cause wrongful loss or damage would amount to mischief in certain circumstances. Hence, the Court concluded that offence U/S.436 of IPC is referable to mischief by fire/explosive substance accompanied with mens rea or knowledge, besides causing destruction of any building ordinarily used as a place of worship or human dwelling or place of custody.

The Court concluded that the Petitioner only casually remarked and asked the witnesses to stop the dousing off the fire which in itself doesn’t constitute an offence under Section 425 of CrpC and hence, quashed the cognizance of offence under section 436 of IPC.

M/s. SBM Nirman Construction Private Limited, Sambalpur v. State of Odisha

Case Number: Case Number: W.P.(C) No.31673 of 2021

Date of Judgement: 10th November, 2022

Pursuant to a notice inviting tender by the Superintending Engineer, Northern (R&B) Circle, Sambalpur-opposite party No.4, the Petitioner was successful in bidding and executing the work. The dispute between the parties revolved around the payment of incentives which was claimed by the petitioner for early completion of the work. However, the opposite parties denied the same for not fulfilling the conditions enumerated in Clause 54 (Condition of Contract) and addendum to Note-1 appended to 3.5.5.(v) of the O.P.W.D. Code at an agreement value of Rs.3,67,92,061/-. Additionally, the Government had unilaterally reduced the agreement value to Rs. 2,95,43.535/-. The Petitioner completed his work early and claimed incentives which was rejected by the Opposite Party as the revised contract value is less than Rs. 3 crores as per addendum to Note No.1 to Para- 3.5.5.(v) of OPWD Code. The petitioner had challenged this refusal as being illegal, arbitrary and unreasonable as well as violative of Article 14 of the Constitution of India.

The Opposite Parties contended that the value of the work done by the petitioner being Rs.2,95,43,535/- was less than the minimum requirement of Rs.3 crores, however, it was admitted fact that the agreement was made between the parties for doing work at an agreement value of Rs.3,67,92,061. The Court held that in a contract matter, the dispute between the parties are to be resolved in strict adherence to the terms of contract of agreement signed between them which in this case has been signed between the parties for a contract value of Rs.3,67,92,061. The Court further held that the unilateral deduction of amount without amending or modifying the contract to deny the incentives to the petitioner in terms of the relevant provisions of OPWD Code, is not only violative of the principle of equality as enshrined in Article 14 of the Constitution of India but also an exposition of inequitable discrimination.

The Court clarified that the claim of the petitioner in this matter would have been probably different, had there been any modification/amendment of contract with insertion of such fact about granting incentive to the petitioner to be impossible for reason of scaling down the contract value since the petitioner executing the contract has legitimate expectation of incentives which is provided for giving encouragement by way of extending extra benefits. However, to unilaterally modify the contract to deny the benefit of incentives as contained in the agreement earlier entered into by the parties taking advantage of position is not only unreasonable but also unfair. Thus, the writ Petition was allowed and the authority were asked to pay the incentive to the Petitioner with due interest.