Justice Sashikanta Mishra, while correcting the erroneous reading and interpretation of the relevant statutory provisions expounds 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. This power includes the power to stay the operation of the order impugned in the appeal.
Brief Facts:
In the current case, the petitioner has challenged the order dated 16.02.2023 passed by the 2nd Additional Sessions Judge whereby her application for a stay of further proceedings pending before the Additional Deputy Commissioner of Police-cum- Executive Magistrate, Bhubaneswar was rejected. the petitioner had filed an appeal against the order passed by the learned Executive Magistrate under section 107 of CrPC, she had prayed for the stay of proceedings before the learned Executive Magistrate during the pendency of the appeal. This application was rejected by the below court and it was held that no power is vested in the appellate Court under Section 373 of CrPC to grant him consequential and interim relief. Moreover, the legislature has not provided any power to suspend the order passed under Section 117 of CrPC. And this order has been questioned through the current petition.
Contentions of the Petitioner:
The learned counsel for the petitioner has argued that unless the direction issued by the learned Executive Magistrate to the petitioner to execute a bond to keep peace in the locality is stayed, it would render the appeal infructuous. It was further submitted that the power to hear an 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.
Contentions of the Respondent:
The Learned Counsel for the respondent has submitted that there is no specific power conferred
on the appellate court under Section 373 of CrPC to grant him consequential relief. However, he has fairly submitted that unless the operation of the impugned order is stayed, it would render the appeal infructuous.
Observations of the Court:
The Hon’ble Court first noted the provisions under Section 373 of CrPC which provide for an appeal from orders requiring security or refusal to accept or reject surety for keeping the peace or good behavior. The court then also noted different appeal provisions under Chapter- XXIX and it was observed that where a provision is intended to be applied to appeals filed under specific provisions, the same has been specifically mentioned in that provision diluting the general power. The Court then went through Section 386 CrPC, which talks about the powers of the Appellate Court and it was concluded that under Section 373 of CrPC, the appellate Court has the power to make any consequential or incident order that may be just or proper, which includes the power to stay the operation of the order impugned in the appeal and the court pointed out that the below court has erroneously held that the power under section 386 CrPC is only meant for appeal under section 377 or 378 CrPC.
The Decision of the Court:
The order of the below court was found to be erroneous and the same was set aside while allowing the CRLMC.
Case Title: Mamata Sahoo v. State of Odisha
Coram: Justice Sashikanta Mishra
Case No.: CRLMC No. 1284 of 2023
Advocates for the Petitioners: Mr. Supriyo Ranjan Mahapatra, P.C. Mahapatra & K. Dey, Advocates
Advocate for the Respondents: Mr. S.K. Mishra, Addl. Standing Counsel.
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