Giridhari Das and ors. Vs. Basudev Das - 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]. - therefore, effectively attracted and the bar could not be circumvented by the subterfuge of treating the revision application as directed against the sessions judge's order. that would be an evasion of the sustute it is a well-known principle of law that the provisions of an act .of parliament shall not be evaded by shift or contrivance. it is now well settled that the inherent powers under see.k.l. issrani, j.1. this is a petition under section 482 of the code of criminal procedure. in this petition, the prayer is to direct that gr case no. 862/92 pending before the sdjm, kendrapara and icc case no. 240/92 pending before the jmfc, kendrapara be tried together by the jmfc, kendrapara where icc case no. 250/92 is pending.2. for this the submission of the counsel for the petitioners is that he had filed the application (annexure-1) on 22-4- i9a4 before the sdjm for transfer of this case to jmfc, kendrapara. he also filed an application (annexure-2) in icc case no. 240/ 92 to reserve the decision till the end of the trial of gr case no. 862/9 . since it was not done, being aggrieved by the order dated 12-7-1994, passed by the jmfc, kendrapara in icc case no. 240/92 of 1992, revision petition (annexure-3) was filed before the additional sessions judge, kendrapara who after hearing the parties has dismissed the same. hence this petition under section 482, cr pc has been filed.3. learned counsel for the petitioners has placed reliance on 1991 (ii) olr 374 (muralidhar baral and ors. v. the state of orissa and ors.) and also 1988 vol. 3 crimes 425(binayak mishra and anr. v. state and anr.).4. learned counsel appearing for the opposite party raised the preliminary objection to the maintainability of this petition under section 482, cr pc after dismissal of the revision petition of the petitioners (annexure-3) by the judgment of the additional sessions judge, kendrapara (annexure-4) he placed reliance on ********** clt 23 (keshab chandra pradnan v. kishore chandra misra)and also 1979 cri l j 318 (jagir singh v. ranbir singh and anr.).5. this fact is not denied by the parties that the incident took place on 1.1.1992 and the complaint case icc 240/92 was filed on 3.5.1992. there, evidence of the patties is over and the case is only fixed for decision. at this stage on 2.6.1994, the application annexure-1 was filed by the petitioner before the magistrate for staying the proceeding because of the pendency of the counter case but since the magistrate did not agree the revision petition (annexure-3) was tiled which was decided by annexure-4. in annexute-4, the lower revisional court has held:'unless both the cases are pending before the trial court and it is brought to the notice of the trying magistrate that another case which is counter to the case at hand is pencing in another court and steps are being token in that regard for transfer of both the cases to one court, it cannot be held that simply on the bald allegation of the pendency of a counter case. magistrate is to stay the proceeding......'6. learned counsel for the petitioner attacks the finding on the ground that the revisional court ought to have called for the record and verified the facts. without verifying the same such findings could not be accepted. but the learned counsel appearing tor the opposite party submits that in that case they had not been served with notice and they have no knowledge of its pendency. the further submission is that had the petitioner been sincere to get the same tried together with icc case, he should have taken steps much earlier not at the stage when the case is going to be decided. it is only perhaps, apprehending that the decision may go against them this trick has been played by the petitioners which according to them is a mischievous trick and will delay the decision for time to coma.7. in 69(1990) clt 23 (supra), it has been held that :'a second revision by the self-same party who did not succeed before the learned sessions judge in the first revision is not maintainable. substantially a revision petition is not maintainable in the garb of a petition under section 482 of the criminal procedure code.'8. sub-section (3) of section 397, cr pc which reads as under:'if an application, under this section has been made by any person either to the high court or to the sessions judge, no further application by the same person shall be entertained by the other of them'.specifically bars the second revision petition by the same party. in 1979 crl lj 318 (supra), it has been held :'the object of section 397(3) is to prevent a multiple exercise of revisional powers and to secure early finality to orders. any person aggrieved by an order of an inferior criminal court is given the option to approach either the sessions judge or the high court and once he exercises the option he is precluded from invoking the revisional jurisdiction of other authority. the language of section 397(3) is clear and peremptory and it does not admit of any other interpretation.when the sessions judge refused to interfere with the order of the magistrate, the high court's jurisdiction was invoked to avoid the order of the magistrate and not that of the sessions judge. the bar of section 397(3) was. therefore, effectively attracted and the bar could not be circumvented by the subterfuge of treating the revision application as directed against the sessions judge's order.the revision application before the high court cannot be treated as an application directed against the order of the sessions judge instead of as one directed against the order of the magistrate. it is not permissible to do so. what may not be done directly cannot be allowed to be done indirectly. that would be an evasion of the sustute it is a well-known principle of law that the provisions of an act . of parliament shall not be evaded by shift or contrivance.'so also in air 1993 sc 1361 (dharampal and ors. v. smt. ramshri and ors.) it has been held :'there is no doubt that the learned magistrate had committed an error in passing the subsequent orders of attachment when the first attachment was never finally vacated and had ''revived the moment the revision application filed against it was dismissed by the learned sessions judge. it appears that none of the parties including the sessions judge realised this error on the part of the magistrate. the learned sessions judge had also committed a patent mistake in entertaining revision application against the fresh orders of attachment and granting interim stays when the had dismissed revision application against the order of attachment earlier. let that be as it is. the question that falls for our consideration now is whether the high court could have utilised the powers under section 482 of the code and entertained a second revision application at the instance of the 1st respondent had preferred a criminal application being cr. r. no. 180/78 to the sessions court against the order passed by the magistrate on 17th october, 1972 withdrawing the attachment. the sessions judge had dismissed the said application on 14th may, 1979. section 397(3) bars a second revision application by the same party. it is now well settled that the inherent powers under see. 482 of the code cannot be utilised for exercising powers which ere expressly barred by the code......'9. in view of this, i dismiss the petition on the preliminary objection.