JUSTICE SASHIKANTA MISHRA

Sanjit Kumar Mishra & Ors v. Ranjit Mishra

Case Number: CRLREV No. 579 of 2011

Date of Decision: 6th September, 2022

In this case, the Petitioners had challenged order of the Learned Trial Court that allowed the petition for substitution by substituting the deceased complainant with the Opposite Party. The deceased complainant had filed a complaint against his son, mother of his daughter-in-law and daughter-in-law as he was evicted from his room on the basis of false dowry allegations by the Petitioners.

The Petitioners argued that unlike civil proceeding, the Code of Criminal Procedure does not recognize substitution of a deceased complainant. The Code provides only for dismissal of a complaint upon death of an accused but does not expressly provide for continuance of the complaint thereafter.

On the other hand, the Opposite Party contended that the discharge of the accused in absence of the complainant under Section 249 of CrPC can only be made applicable when the offence can be lawfully compounded or is non-cognizable but not in respect of non-compoundable offences such as the ones Section 426/506 IPC.

The Court observed that the legal heirs of a complainant can continue the proceeding after his death and to such extent therefore, the magistrate had not committed any error in allowing one of his legal heirs to prosecute the complaint originally filed by his father. However, the Court stressed that the petition filed by the son of the deceased complainant to substitute him in place of his father must be deemed to be an application for permission to conduct prosecution as per Section 302 of the CrPC. The Court remarked- “any action which seeks to foreclose the right of a person to prosecute a legitimate complaint against his legal heirs and relations cannot be approved.” Accordingly, the CRLREV was allowed.

Dr. Prajyoti Swain and Ors. v. State of Odisha and Anr.

Case Number: WP(C) No.15435 of 2019 and batch

Date of decision: 14th October, 2022

In these cases, the Petitioners had challenged the non-inclusion of their names in the select list for being recommended for appointment as Medical Officers (Asst. Surgeons) pursuant to the advertisement dated 5th January, 2019. The Petitioners had crossed the upper age limit for entry into the service i.e. 32 years, but in view of Clause-3 of the advertisement wherein age relaxation upto maximum of five years was provided for doctors already in service of the Government contractually or on ad hoc basis, the Petitioners had submitted their applications.

The Petitioners contended that they had never claimed to be considered under the SEBC category, but had only indicated the category to which they belong against the appropriate column in the application form. Further, the Petitioners claimed age relaxation as per Rule 7 of the 2017 Rules read with Clause-3 of the advertisement. Since the Petitioners had secured more than the cut-off marks they should have been considered under the unreserved category in view of the settled position of law that merit cannot be ignored under any circumstances.

The Opposite Party argued that the Government had submitted requisition to fill up 1950 posts, out of which only 938 were selected. 107 candidates did not join, for which the Government requested the OPSC to provide a list of 107 selected candidates for consideration of their appointment, but the OPSC having refused nothing further could have been done by the Government.

This Court observed that the Petitioners were entitled to be selected on their own merit as they had cleared the cut-off marks, but were not selected only because of absence of vacancies under the SEBC category. The Court found the methodology adopted by the OPSC in finalizing the select list as entirely wrong and untenable. Insofar as the question of relief is concerned, the Court remarked- “the Petitioners can only claim to be considered for inclusion in the select list in respect of the posts kept vacant as per order of this Court and nothing more.” The Court disposed of the writ petition with direction to OPSC to recommend to the State Government within a period of two months the names of only those Petitioners who had secured more than the cut-off marks of the UR category for their appointment as Medical Officers if they had been otherwise found ineligible.