Rashmikanta Satapathy Vs Samanta Heramba Kumar Patasani

This criminal miscellaneous application is directed against Order dated 05.04.2023 passed by this Court praying therein to restore petition, being CRLMC No.370 of 2019, which was dismissed for non-prosecution.

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It is revealed from the present petition that the petitioner had filed petition (CRLMC) under Section 482 of the Code of Criminal Procedure, 1973, praying therein to quash the Order dated 24.09.2018 passed by learned Sessions Judge, Khurda in Criminal Revision No.60 of 2018.

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3.1. Perusal of record further reveals that, this Court while issuing notice to the opposite parties in the said CRLMC, on 12.04.2019 passed interim Order in I.A. No.288 of 2019 (arising out of said CRLMC No.370 of 2019), which reads as follows:

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“12.04.2019 CRLMC No.370 of 2019 Heard.

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Issue notice to the opposite parties through Registered Post with A.D./Speed Post returnable within four weeks. Postal requisites shall be filed within three working days hence.

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List this matter as and when I sit single after four weeks.

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S.K. Mishra, J

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12.04.2019 I.A. No.288 of 2019

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Heard.

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Status quo as on date with regard to possession of the case land shall be maintained by both the parties till the next date. Urgent certified copy of this order be granted on proper application.

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Sd/-

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S.K. Mishra,J”

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3.1. Explaining, Mr. Bhabani Sankar Tripathy, learned counsel for the petitioner submitted that against the reversal order of the learned Sessions Judge, Khurda in aforesaid criminal revision passed in connection with CMC No.943 of 2016 instituted under Section 133 (1) of the Code of Criminal Procedure before the Additional DCP- cum -Executive Magistrate, Bhubaneswar, this Court having passed the interim order of status quo directed for listing before the concerned Hon’ble Judge, but the same did not get listed as directed. However, said CrlMC got listed on 05.04.2023, on which date the counsel for the petitioner could not appear. He brought to the notice of this Court that even though the counsel for both the opposite parties entered appearance on 13.05.2019 by filing vakalatnama, the copy of Order dated 05.04.2023 indicates that on the said date he also did not appear. However, the matter

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stood dismissed for non-appearance of the counsel for the petitioner and consequently, the interim order got vacated.

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3.2. Expanding his argument further, Sri Bhabani Sankar Tripathy, learned Advocate, submitted that while working as Chief Manager, Can Fin Homes Ltd., the petitioner was terminated from service with effect from 10.09.2020 which led him to shift to his native place at Barunsingh Police Station in the district of Balasore. At the relevant point of time, Pandemic (Covid-19) was at its peak. After the situation became normalised, the petitioner again came back to Bhubaneswar in search of job for eking out livelihood for himself and his family. Till the end of the Summer vacation, when this Court reopened on 18.06.2024, he lost contact with his counsel. It is only in the month of June, 2024, when the petitioner came to Cuttack for his medical check-up he met his counsel and could come to know about dismissal of his CRLMC. The petitioner having taken back the brief, engaged another counsel and filed this application for restoration of the CRLMC. He, therefore, submitted that for default of the counsel, the petitioner may not be made to suffer irreparable loss.

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3.3. It is submitted by learned counsel for the petitioner that serious prejudice would ensue to the petitioner, if the CRLMC is not restored to its file for hearing on merits.

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On being noticed, Mr. Raju Kumar Satapathy, learned counsel appeared on behalf of the opposite parties and filed objection contending that the petitioner has been staying in Bhubaneswar during Pandemic period and has made false statement that he shifted to his native place. He also submitted that since this Court updates with current order passed by uploading in the web

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portal, there was no difficulty on the part of the petitioner to ascertain the status of his case. Since nothing has been brought on record by the petitioner with regard to financial stringency and ailments, the explanation submitted by the petitioner deserves to be rejected and consequently, the CRLMA is required to be dismissed rendering quietus to the CRLMC.

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Heard learned counsel for both the sides.

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Considering the factual matrix, contentions and averments contained in the petition and taking into account the plight of the petitioner, claiming to be jobless, and bearing in mind the insurmountable difficulties faced during the period of Pandemic, when many lives and families were disturbed and distressed, this Court does not see any deliberate or intentional lapse on the part of the petitioner. To a query of this Court regarding his absence on 05.04.2023, the counsel for the opposite parties also conceded that when the matter in CRLMC was listed and called for hearing on 05.04.2023, though he had filed his vakalatnama in the year 2019 itself, he also did not remain present on the said date.

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6.1. This Court appreciates the step taken by the petitioner after coming to know about dismissal of the CRLMC for non-appearance of the counsel on 05.04.2023, which matter was listed after 2019 before this Court. As it is presented during course of hearing by the learned counsel that the petitioner, who has little knowledge about niceties about listing of the matter and process of hearing, after entrusting his case to learned counsel believed that he would take all necessary steps as and when required by this Court, but unfortunately due to omission, the counsel could not remain present when the matter was called for hearing. This Court is, thus,

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appreciates that there was no deliberate laches on the part of the petitioner, rather finds serious prejudice would be ensued, if the CRLMC is not restored to its original file for hearing on merits.

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6.2. Under the aforesaid circumstances with factual matrix as narrated supra , having been appraised of sufficient plausible explanation, this Court is persuaded that there was genuine difficulty on the part of the counsel for the petitioner for nonappearance on 05.04.2023, the CRLMA is bound to succeed.

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6.3. The Order dated 05.04.2023 passed by this Court in CRLMC is recalled and the CRLMC No.370 of 2019 is directed to be restored to its original file for hearing on merits.

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Since Mr. Raju Kumar Satapathy, learned counsel appears for both the opposite parties, who are arrayed as parties in the CRLMC, the petitioner may serve a copy of CRLMC on the learned counsel for the opposite parties within a period of seven days from today.

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Registry is instructed to list the CRLMC No.370 of 2019 before the appropriate assigned Bench.

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With the aforesaid observation, the CRLMA stands disposed

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of.

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Aswini

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Signature Not Verified

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Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTA CK Date: 06-Sep-2024 14:48:10

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Rashmikanta Satapathy v. Samanta Heramba Kumar Patasani

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Rashmikanta Satapathy v. Samanta Heramba Kumar Patasani

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