indrajeet Roy Vs. Republic of India and anr. - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - he filed a memorandum indicating that he was not feeling well and therefore, the accused- petitioner, who is an advocate, may be permitted to cross-examine p.s.n. phukan, c.j.1. in this writ application order no. 19 dated 7.12.1998 passed by the learned chief judicial magistrate-cwm- assistant sessions judge, bhubaneswar in s.t.case no. 5 of 1998 is under challenge.2. factual position is almost undisputed and runs as follows :petitioner is facing trial for alleged commission of offences punishable under sections 354, 376/511 of the indian penal code, 1860 (in short, 'ipc'). on 7.12.1998 p.w. 5 was examined in chief by the public prosecutor, cbi before lunch interval. shri p.c.kanungo, advocate was the conducting lawyer for the petitioner. he filed a memorandum indicating that he was not feeling well and therefore, the accused- petitioner, who is an advocate, may be permitted to cross-examine p.w. 5. a memorandum to that effect signed by the advocate was filed. the prayer was rejected by the learned c.j.m.-cwm-assistant sessions judge on the ground that the accused-petitioner had engaged more than five advocates to conduct his case and none of them had withdrawn the power till that time. in the circumstances, the accused was not to be permitted to cross-examine the witness where the advocates engaged by him still held power. the prayer was, therefore, rejected. however, a memo, was filed stating that the defence advocate will cross-examine the p.ws. reserving their right to move this court. it was observed by the court that it had nothing to say in the matter, and any defence advocate who holds power for the accused may cross- examine the witness. accordingly, p.w. 5 was examined, cross-examined and discharged. the order refusing petitioner's prayer to cross-examine p.w. 5 by him is challenged in this application.3. stand of the petitioner in the application is that the scheme of the code of criminal procedure, 1973 (in short, the 'code') and the constitution of india, 1950 (in short, the 'constitution') confers a right of cross-examining a witness by the accused in respect of evidence given in examination-in-chief. this is part of the statutory and fundamental right guaranteed under articles 21 and 22 of the constitution. merely because the accused has engaged counsel that does not deprive him of the right to cross-examine a witness if he chooses to do so.4. a counter affidavit has been filed by the cbi taking the stand that the application has become infructuous as p.w. 5 has been examined and cross-examined by the defence advocate on 7.12.1998. it is further stated that the allegations pertain to procedural aspect of trial before a court of session which could have been agitated by availing remedy under section 482 of the code. large number of senior advocates have appeared for the accused and at no point of time the accused-petitioner wanted to conduct the case himself and as the advocates appearing for the accused held the power he could not be permitted to cross- examine the witness himself. reference is made to section 303 of the code to show that it completely takes away the right of an accused to conduct the proceedings himself.5. it is stated by the learned counsel for petitioner that had the petitioner got any ill motive he could have disengaged all the lawyers and conducted the cross-examination himself and later on again engaged the counsel. such unfair practice was not adopted by the petitioner with a view to uphold the dignity of law. we are not expressing any opinion on this submission. however, as rightly submitted by mr. mohanty, learned counsel for cbi, p.w. 5 has been examined, cross- examined and discharged. the learned counsel for petitioner pointed out that the cross-examination was done with most difficulty as evident from the memorandum-annexure- 3 itself. if further cross-examination of p.w. 5 is necessary the court can take resort to section 311 of the code. the learned counsel for petitioner stated that an appropriate application shall be filed in that regard. if it is done, the trial court shall pass appropriate orders in accordance with law.the writ application is accordingly disposed of.p.k. tripathy, j.6. i agree.