Orissa High Court

Orissa High Court: In an appeal against the order passed by Court below wherein the appellant’s application for stay of proceedings pending before the Additional Deputy Commissioner of Police-cum- Executive Magistrate, Bhubaneswar was rejected, the Single Judge Bench of Sashikanta Mishra, J., allowed the appeal and set aside the impugned order of the Court below, directing the further proceedings against the appellant to be stayed.

In the matter at hand, the appellant filed an appeal before the Court below against the order passed by Executive Magistrate, Bhubaneswar, praying for stay of proceedings during the pendency of the appeal. The Court below rejected the appeal and held that no power is vested on the appellate Court under Section 373 of Criminal Procedure Code, 1973 (‘CrPC’), to grant consequential and interim relief. Further, the Court below said that the legislature has not provided any power to suspend the order passed under Section 117 of CrPC as such an order shall not cause prejudice to any person. Aggrieved by the decision of the Court below the appellant has appealed before the High Court.

Whether the appellate Court has power to make any just consequential or incidental order for appeals under Section 373 of CrPC?

The Court referred to Chapter-XXIX of CrPC and said that Section 373 provides for appeal from orders requiring security or refusal to accept or reject surety for keeping peace or good behavior. Further, the Court referred to Section 386 of CrPC and said that the very use of the words “and in case of an appeal under Section 377 or Section 378” means that the said provision is generally applicable to all kinds of appeals under Chapter-XXIX, it is also applicable to appeals filed under Sections 377 and 378 CrPC.

The Court stated that this would be further evident from a reading of clause (d) of Section 386, conferring power on the appellate Court to alter or reverse order passed in an “appeal against any other order”. The Court pointed out that 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. Thus, the Court said that in an appeal under Section 373 of CrPC, the Appellate Court has the power to make any consequential or incidental order that may be just or proper. Moreover, the Court clarified that 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 CrPC is only meant for appeal under Section 377 or 378 CrPC, is clearly erroneous.

Therefore, the Court viewed that the impugned order passed by the Court below cannot be sustained in the eye of law as it is evidently based on erroneous reading and interpretation of the relevant statutory provisions.

Thus, the Court allowed the appeal and set aside the impugned order.

[Mamata Sahoo v. State of Odisha, 2023 SCC OnLine Ori 1612, decided on 11-04-2023]

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