Brahma Naik Vs. Ram Kumar Agarwalla and ors. - 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]. - but this jurisdiction should in our opinion be exercised by the high court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant, miscarriage of justice. this places limitations on the power of the high court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised, it is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. these and other oases of similar nature can properly be held to be cases of exceptional nature, where the high court can justifiably interfere with an order of acquittal. after some discussion, though somewhat unsatisfactory, the reached the ultimate conclusion that the prosecution failed to establish beyond reasonable doubt that paddy was removed by the accused from the land belonging to the informant. it is a question of assessment of evidence, and as has already been said, law is well settled that the high court is not to interfere where the judgment is based purely on assessment of evidence in a revision against acquittal. 5. both the contentions fail.orderg.k. misra, c.j.1. the prosecution case is that the informant brahma naik was given possession of the disputed lands in a proceeding under section 145. cr. p. c., to which ram kumar agarwalla, opposite party no. 1 was a party. possession was given on 10-12-1968 and brahma naik continued in possession and raised paddy crops on that land. on 16-11-1969 accused ram kumar agarwalla and ten other persons employed in the rice-mill came in a body and removed the paddy sheaves which had been cut and were about to be taken away by the petitioner and his men. causing grievous injuries by fracturing brahma naik's left wrist and other injuries to nrupa naik son of brahma naik. the defence of ram kumar agarwalla was that the informant brahma naik was illegally cut-ting paddy from ram kumar's land and on his protest brahma naik left the place after creating some disturbance. the paddy was grown by ram kumar agarwalla on his own land and accordingly he lodged protest when brahma naik tried to remove the same. the case was originally tried by shri v. v. r. sharma, assistant sessions judge, bangarh. he had examined about seven witnesses. as he was transferred the case was subsequently taken up by sri n. sengupta. on the demand of the accused, there was a de novo trial. the learned assistant sessions judge, after examining the materials on record gave benefit of doubt to the accused persons and recorded an order of acquittal. it is against the judgment dated 8-5-1972 that this criminal revision has been filed. as to the jurisdiction and power of this court in a criminal revision against an acquittal, there has been series of supreme court decisions. its ambit is very narrow as would appear from sec, 439(4) cr. p. c. itself. it lays down that nothing in this section shall be deemed to authorise the high court to convert a finding of acquittal into one of conviction. in : [1963]3scr412 (k. chinnaswamy reddy v. state of andhra pradesh) their lordships observed thus in paragraph 7:it is true that it is open to a high court in revision to set aside an order of acquittal even at the instance of private parties, though the state may not have thought lit to appeal; but this jurisdiction should in our opinion be exercised by the high court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant, miscarriage of justice. sub-section (4) of section 439 forbids a high court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the high court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. this places limitations on the power of the high court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised, it is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. we may, however, indicate some cases of this kind, which would in our opinion justify the high court in interfering with a finding of acquittal in revision. these cases may be : where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding, of the offence, which is invalid under the law. these and other oases of similar nature can properly be held to be cases of exceptional nature, where the high court can justifiably interfere with an order of acquittal.2. mr. mohanti for the petitioner raised two contentions:(1) the assistant sessions judge. shri n. sengupta illegally allowed the accused persons to utilise the evidence recorded by his predecessor for the purpose of contradiction under section 145 of the evidence act.(2) though at one stage in his judgment he came to the conclusion that the accused persons removed paddy from the lands of the informant which he got possession of in the proceeding under section 145, cr. p. c. ultimately in contradiction to his own finding he gave benefit of doubt to the accused persons.3. the first contention that the evidence recorded by the predecessor assistant sessions judge is wholly inadmissible and is non est, and cannot be utilised, even to contradict the statements of the same witnesses before the successor judge in the same proceeding is a fantastic contention which has no legal sanction. under section 145 of the evidence act, a witness may be cross-examined as to previous statements made by him in writing or reduced to writing and relevant to matters in question, without such writing being shown to him. or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.the statements of the prosecution witnesses recorded by the predecessor assistant sessions judge are former statements of the witnesses who were subsequently examined after the de novo trial, though in the same proceeding. these statements can be used for contradiction under section 145 of the evidence act. there is no logic in the contention that because there was a de novo trial those statements must be treated as if non-existent or inadmissible.4. the second contention is equally without substance. the learned assistant sessions judge examined the question whether the accused removed the paddy from the land belonging to the informant or from his own land. after some discussion, though somewhat unsatisfactory, the reached the ultimate conclusion that the prosecution failed to establish beyond reasonable doubt that paddy was removed by the accused from the land belonging to the informant. the finding is based on assessment of evidence. however unsatisfactory that finding may be. the high court has got no jurisdiction to interfere with such a finding in revision against acquittal. there is no criticism that the finding is based on inadmissible evidence or has excluded from consideration admissible evidence. it is a question of assessment of evidence, and as has already been said, law is well settled that the high court is not to interfere where the judgment is based purely on assessment of evidence in a revision against acquittal.5. both the contentions fail. there is no merit in this revision which is accordingly dismissed.

Judgment:
ORDER

G.K. Misra, C.J.

1. The prosecution case is that the informant Brahma Naik was given possession of the disputed lands in a proceeding under Section 145. Cr. P. C., to which Ram Kumar Agarwalla, opposite party No. 1 was a party. Possession was given on 10-12-1968 and Brahma Naik continued in possession and raised paddy crops on that land. On 16-11-1969 accused Ram Kumar Agarwalla and ten other persons employed in the rice-mill came in a body and removed the paddy sheaves which had been cut and were about to be taken away by the petitioner and his men. causing grievous injuries by fracturing Brahma Naik's left wrist and other injuries to Nrupa Naik son of Brahma Naik. The defence of Ram Kumar Agarwalla was that the informant Brahma Naik was illegally cut-ting paddy from Ram Kumar's land and on his protest Brahma Naik left the place after creating some disturbance. The paddy was grown by Ram Kumar Agarwalla on his own land and accordingly he lodged protest when Brahma Naik tried to remove the same. The case was originally tried by Shri V. V. R. Sharma, Assistant Sessions Judge, Bangarh. He had examined about seven witnesses. As he was transferred the case was subsequently taken up by Sri N. Sengupta. On the demand of the accused, there was a de novo trial. The learned Assistant Sessions Judge, after examining the materials on record gave benefit of doubt to the accused persons and recorded an order of acquittal. It is against the judgment dated 8-5-1972 that this Criminal Revision has been filed. As to the jurisdiction and power of this Court in a Criminal Revision against an acquittal, there has been series of Supreme Court decisions. Its ambit is very narrow as would appear from Sec, 439(4) Cr. P. C. itself. It lays down that nothing in this section shall be deemed to authorise the High Court to convert a finding of acquittal into one of conviction. In : [1963]3SCR412 (K. Chinnaswamy Reddy v. State of Andhra Pradesh) their Lordships observed thus in paragraph 7:

It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought lit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant, miscarriage of justice. Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised, It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may, however, indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be : where the trial Court has no jurisdiction to try the case but has still acquitted the accused, or where the trial Court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal Court has wrongly held evidence which was admitted by the trial Court to be inadmissible, or where material evidence has been overlooked either by the trial Court or by the appeal Court, or where the acquittal is based on a compounding, of the offence, which is invalid under the law. These and other oases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal.

2. Mr. Mohanti for the petitioner raised two contentions:

(1) The Assistant Sessions Judge. Shri N. Sengupta illegally allowed the accused persons to utilise the evidence recorded by his predecessor for the purpose of contradiction under Section 145 of the Evidence Act.

(2) Though at one stage in his judgment he came to the conclusion that the accused persons removed paddy from the lands of the informant which he got possession of in the proceeding under Section 145, Cr. P. C. ultimately in contradiction to his own finding he gave benefit of doubt to the accused persons.

3. The first contention that the evidence recorded by the predecessor Assistant Sessions Judge is wholly inadmissible and is non est, and cannot be utilised, even to contradict the statements of the same witnesses before the successor Judge in the same proceeding is a fantastic contention which has no legal sanction. Under Section 145 of the Evidence Act, a witness may be cross-examined as to previous statements made by him in writing or reduced to writing and relevant to matters in question, without such writing being shown to him. or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

The statements of the prosecution witnesses recorded by the predecessor Assistant Sessions Judge are former statements of the witnesses who were subsequently examined after the de novo trial, though in the same proceeding. These statements can be used for contradiction under Section 145 of the Evidence Act. There is no logic in the contention that because there was a de novo trial those statements must be treated as if non-existent or inadmissible.

4. The second contention is equally without substance. The learned Assistant Sessions Judge examined the question whether the accused removed the paddy from the land belonging to the informant or from his own land. After some discussion, though somewhat unsatisfactory, the reached the ultimate conclusion that the prosecution failed to establish beyond reasonable doubt that paddy was removed by the accused from the land belonging to the informant. The finding is based on assessment of evidence. However unsatisfactory that finding may be. the High Court has got no jurisdiction to interfere with such a finding in revision against acquittal. There is no criticism that the finding is based on inadmissible evidence or has excluded from consideration admissible evidence. It is a question of assessment of evidence, and as has already been said, law is well settled that the High Court is not to interfere where the judgment is based purely on assessment of evidence in a revision against acquittal.

5. Both the contentions fail. There is no merit in this revision which is accordingly dismissed.