M.S. Jaggi Vs. State - 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]. - 3. section 199, indian penal code reads as follows :199. whoever, in any declaration made or subscribed by him, which declaration any court of justice, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used shall be punished in the same manner as if he gave false evidence'.a bare reading of the section would show that for a conviction under the said section the following ingredients are to be satisfied :(a) the accused made or subscribed the declaration in question; 432 of 1979 wherein he made the following statement :5. that the opposite party has come to know from reliable sources that this hon'ble court and the hon'ble justice j. 6. the petitioner very fairly submitted that at this stage of the case, it may be assumed that the first three ingredients are prima facie satisfied. 1, it is stated that the facts are true to the knowledge of the deponent, the basis of the knowledge being reliable source, reliability of the source is to be found out. 2 create suspicion about the source to be reliable. 12. in conclusion, i am not satisfied that this is a fit case for admission which is accordingly dismissed.s.c. mohapatra, j.1. this is an application by the accused against the order of the learned judicial magistrate, first class. cuttack, dated 14.11.1985 passed in 2 (a) cc no. 23 of 1932 deciding to frame charge against him under section 199 of the indian penal code. 2. in this court the accused himself presented his case and i have heard him at lengh on 16.1.1985, 21.1.1986, 24.1.1986 and today, keeping in mind that having the normal emotions of an accused to get rid of the blame put on him, he is likely to fell aggrieved in case sufficient opportunity is not given to him to exhaust all his submissions. 3. section 199, indian penal code reads as follows : '199. whoever, in any declaration made or subscribed by him, which declaration any court of justice, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used shall be punished in the same manner as if he gave false evidence'.a bare reading of the section would show that for a conviction under the said section the following ingredients are to be satisfied : (a) the accused made or subscribed the declaration in question; (b) such declaration was received by a court of justice as evidence of a fact; (c) in the declaration made he made a statement; (d) such statement was false; (e) the statement made was on a material point; and (f) the accused knew when making such a declaration that it was false.4. the prosecution in this case was initiated by a complaint lodged by the registrar of this court. on 16. 11. 1981, the petitioner filed an affidavit in criminal revision no. 432 of 1979 wherein he made the following statement : '5. that the opposite party has come to know from reliable sources that this hon'ble court and the hon'ble justice j.k. mohanty and hon'ble chief justice r.n. mishra, and the counsel appearing for the petitioner, b.b. mohanty were class-mates and in view of the affidavits and petitions filed by the opposite party most humbly and respectfully submits that your lordship in the interest of justice should not hear the matter of this party.'lastly, it was stated :'that the facts stated above are true to my knowledge.'this affidavit was filed at a time when hon'ble dr. justice b.n. misra was hearing the criminal revision. on 17.11.1981, hearing of the criminal revision was concluded on the affidavit of the petitioner and the judgment was reserved to be delivered. on 15-12-1961 by order no. 46 direction was given to the registrar to lodge the proper complaint in accordance with law before the chief judicial magistrate, cuttack. in this background, the complaint was filed by the registrar. 5. evidence of p. w. 1 was recorded, the affidavit dated 16.11.1981 was marked at ext. 1 and the order-sheet containing order no. 46 dated 15-12-1981 in cri. revision no. 432 of 1979 has also been marked as ext. 2. three other affidavits dated 20-10-1981 and 17-11-1981 were marked as exts. a, b and c considering these documents the learned magistrate decided to frame the charge. 6. the petitioner very fairly submitted that at this stage of the case, it may be assumed that the first three ingredients are prima facie satisfied. he, however, very strongly submitted that the materials on record do not justify a prima facie satisfaction of the last three ingredients. 7. there is no doubt that the affidavit was made for the purpose of bringing to the notice of the hon'ble judge that he should not hear the matter. therefore, the statement alleged to be an offence was on a material point. it is to be seen whether the statement was false to the knowledge of the accused which would cover the rest two ingredients. 8. while considering the question of framing a charge, the evidentiary value of the materials are not to be assessed. reading the materials, as they are, one is to find out whether the falsity of the statement in the affidavit-within the knowledge of the accused can be spelt out once in the affidavit in ext. 1, it is stated that the facts are true to the knowledge of the deponent, the basis of the knowledge being reliable source, reliability of the source is to be found out. until the source is not disclosed, the question remains unanswered. the answer will depend upon the materials obtained in the trial. facts recorded in ext. 2 create suspicion about the source to be reliable. it cannot be said at this stage that on perusal of exts. 1 and 2 a prima facie case is not made out. what would be the evidentiary value of the affidavits marked as exts. a, b and c would come within the arena of trial. 9. the petitioner has brought to my notice several other documents which were not before the trial court. since those are not on the record, i am not dealing with the same lest any observation made in respect of those documents might prejudice the accused in the trial. decisions both having persuasive and binding effect of the supreme court this court, patna high court and allahabad high court have been cited before me in course of submission. explaining of such decisions would be academic and in course of explaining the same i shall have to deal with facts. those decisions which would be material will be certainly taken into consideration by the trial court. 10. it need not be emphasised that complaint by this court is no of any greater value than by any other person no higher weight is to be given to it while trying the charge against the accused. the criminal jurisprudence that several accused may be acquitted but one innocent person shall not be convicted, shall not be forgotten by the trial court while trying the accused. this observation is made by me to clarify the apprehension in the mind of the accused that the complaint by this court is likely to influence the mind of a magistrate, who is subordinate to this court. i am sure, a member of the judiciary even in the lowest ladder has not forgotten that his actions are to be made honestly and fearlessly. he is to prove not only his own independence but also the independence of the judiciary.11. true it is, i am rejecting the prayer of the accused for discharging him from the complaint. yet i make it clear that no observation in the impugned order or in this order shall influence the trying magistrate in any manner and keeping up the tradition of the judicial system in this country the trial court shall honestly and fearlessly deal with the matter.12. in conclusion, i am not satisfied that this is a fit case for admission which is accordingly dismissed. send back the records to the trial court immediately.