Orissa High Court
Narayan Nayak And Others vs State Of Odisha .Vig. on 18 August, 2017
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No. 376 Of 2017
An appeal under section 17 of the Orissa Special Courts Act,
2006 from the order dated 24.04.2017 passed by the Authorized
Officer, Special Court, Bhubaneswar in Confiscation Case No.05
of 2011.
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CRLA No. 389 Of 2017
An appeal under section 17 of the Orissa Special Courts Act,
2006 from the order dated 27.04.2017 passed by the Authorized
Officer, Special Court, Bhubaneswar in Confiscation Case No.05
of 2011.
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CRLA No. 375 Of 2017
An appeal under section 17 of the Orissa Special Courts Act,
2006 from the order dated 12.05.2017 passed by the Authorized
Officer, Special Court, Bhubaneswar in Confiscation Case No.05
of 2011.
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Narayan Nayak & others
(in all the appeals) ........ Appellants
-Versus-
State of Odisha (Vig.)
(in all the appeals) ......... Respondent
For Appellants: - Mr. Bijoy Kumar Behura
Anima Kumari Dei
For Respondent: - Mr. Sanjay Kumar Das
Standing Counsel (Vigilance)
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2
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Argument: 28.07.2017 Date of Judgment: 18.08.2017
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S. K. Sahoo, J.The appellants Narayan Nayak, Kumudini Nayak, Padmanav Nayak and Santosh Kumar Nayak in CRLA No. 376 of 2017 have challenged the impugned order dated 24.04.2017 passed by the learned Authorized Officer, Special Court, Bhubaneswar in Confiscation Case No.05 of 2011 in rejecting their petition to reassess the cost of summoning the investigating officer (P.W.1) and directing them to deposit the cost for availing further cross-examination of P.W.1.
The appellants in CRLA No. 389 of 2017 have challenged the impugned order dated 27.04.2017 passed by the same Court in the same proceeding in discharging the investigating officer (P.W.1) and closing the evidence from the side of the State-Applicant.
The appellants in CRLA No. 375 of 2017 have challenged the impugned order dated 12.05.2017 also passed by the same Court in the same proceeding in closing the evidence 3 from the side of the appellants and posting the case for argument.
Since the appellants in all the three criminal appeals are same and they have challenged different orders passed by the same Court in the same proceeding, with the consent of the respective parties, the appeals were heard analogously and disposed of by this common judgment.
The appellant no.1 Narayan Nayak has been charge sheeted under section 13(1)(e) read with section 13 (2) of the Prevention of Corruption Act, 1988 (hereafter "P.C. Act") in connection with Cuttack Vigilance P.S. Case No.10 of 1999 on the accusation of possessing disproportionate assets to the tune of Rs.14,68,440.81 paisa and in connection with that case, the confiscation proceeding has been initiated against him, his wife Kumudini Nayak and their two sons Padmanav Nayak and Santosh Kumar Nayak before the learned Authorized Officer, Special Court, Bhubaneswar.
It appears that the appellant no.1 Narayan Nayak earlier approached this Court in CRLA No. 04 of 2017 in challenging the order dated 30.11.2016 passed by the learned Authorized Officer in rejecting the petition filed by the appellants seeking adjournment of the case for further cross-examination of 4 P.W.1 Sadasiva Rath who was the D.S.P., Vigilance Cell, Orissa, Cuttack and took up investigation as per the direction of the S.P., Vigilance, Cuttack. This Court vide order dated 11.01.2017 directed the appellant no.1 to remain present before the learned Authorized Officer on 18.01.2017 and the Vigilance Department was also directed to ensure the presence of the concerned I.O. on that day for his further cross-examination and it was further ordered that if the appellant no.1 does not avail the opportunity, no further adjournment shall be granted to him in any circumstances. On 18.01.2017 P.W.1 appeared before the learned Authorized Officer but as the local bar members were on strike, there was no cross-examination and the learned Authorized Officer recorded the cross-examination of the witness as 'nil' and accordingly, discharged him and posted the case for evidence from the side of the appellants.
The appellant no.1 challenged the aforesaid order dated 18.01.2017 before this Court in CRLA No.50 of 2017. This Court vide order dated 17.03.2017 has been pleased to observe that the appellant no.1 is deliberately delaying the matter, however, directed the prosecution to produce P.W.1 on 28.03.2017 before the learned Authorized Officer for further cross-examination on recall and further directed that the cost for 5 recalling of the witness as would be directed by the learned Authorized Officer shall be paid by 22nd March 2017. On 28.03.2017 P.W.1 appeared before the learned Authorized Officer and he was cross-examined at length and his evidence was closed. On 30.03.2017 a recall petition was filed by the appellants to recall P.W.1 for further cross-examination and to defer the evidence of the appellants till the closure of further cross-examination of P.W.1. The learned Authorized Officer rejected the petition on the very day.
The appellants challenged the aforesaid order dated 30.03.2017 before this Court in CRLA No. 206 of 2017. This Court vide judgment and order dated 10.04.2017 disposed of the criminal appeal directing the investigating officer (P.W.1) to appear before the learned Authorized Officer for further cross- examination on 24.04.2017 during the first half of that day which would continue day-to-day till it is over after taking note of the submission of the learned counsel for the appellants that the cross-examination would be completed by 27th April 2017. The learned Authorized Officer was also directed to assess the cost for summoning P.W.1 for further cross-examination which shall be deposited by the appellants by 19.04.2017. 6
The learned Authorized Officer on receipt of such judgment and order dated 10.04.2017 passed in CRLA No.206 of 2017, directed the appellants vide order dated 19.04.2017 to deposit cost of Rs.10,000/- (rupees ten thousand only) i.e. Rs.2500/- per day for four days i.e. 24.04.2017 to 27.04.2017. The case was taken up on 24.04.2017 as per the date fixed by this Court and the I.O. Sadasiva Rath (P.W.1) was present in the Court of learned Authorized Officer but the cost for summoning P.W.1 was not deposited by the appellants and the learned counsel for the appellants appeared on that day before the learned Authorized Officer at about 12.30 p.m. even though specific direction was given to the Court to take up the matter at 11.00 a.m. The learned counsel for the appellants without depositing the cost filed a petition before the learned Authorized Officer to reassess the cost in view of Rule 5(1) of the Odisha Criminal Court Witnesses (Payment of Expenses) Rules, 2012 (hereafter '2012 Rules'). The learned Authorized Officer rejected the petition for reassessment of the cost, however, allowed the learned counsel for the appellants for further cross-examination of P.W.1 on the basis of oral undertaking given by him to deposit the cost in course of the day failing which he will not further cross-examine the witness on the day following. The cross- 7 examination was resumed at 12.40 p.m. and it continued till 4.00 p.m. and the cross-examination was deferred to the next day i.e. 25.04.2017. The impugned order dated 24.04.2017 in rejecting the petition filed by the appellants to reassess the cost of the witness (P.W.1) and directing the appellants to deposit the cost for availing further cross-examination of P.W.1 has been challenged in CRLA No.376 of 2017.
P.W.1 appeared before the learned Authorized Officer again on 25.04.2017 and he was further cross-examined by the learned counsel for the appellants and the case was deferred to 26.04.2017. On 26.04.2017 P.W.1 was also present but the learned counsel for the appellants remained absent and no step was taken on their behalf. However, since the local bar members prayed for accommodation as per their resolution on account of death of one of their members, the learned Authorized Officer adjourned the case to 27.04.2017 and directed P.W.1 to remain present sharp by 11.00 a.m. for further cross-examination. On 27.04.2017 though P.W.1 was present in time but nobody appeared on behalf of the appellants and no steps were taken on their behalf. Therefore, the learned Authorized Officer discharged the witness (P.W.1). At about 12.30 p.m., a resolution was received from the local bar association praying for 8 accommodation to the bar members for the preparation and arrangement of Lawyer's Day which was to be observed on the day following. The learned Authorized Officer closed the evidence from the side of State-Applicant and posted the case for evidence from the side of the appellants on 05.05.2017. The impugned order dated 27.04.2017 in discharging the investigating officer (P.W.1) and closing the evidence from the side of State-Applicant has been challenged in CRLA No.389 of 2017.
The case was taken up on 05.05.2017 and on that day, a time seeking petition was filed by the learned counsel for the appellants which was allowed and the case was posted to 12.05.2017, however, the learned Authorized Officer directed the appellants to deposit the cost of Rs.3000/- which was earlier imposed on 30.03.2017. On 12.05.2017 again another petition was filed by the appellants to clarify the order dated 05.05.2017. Since neither the cost was deposited nor the appellants got ready to adduce their evidence, the learned Authorized Officer closed the evidence from the side of the appellants and posted the case for argument. The impugned order dated 12.05.2017 in closing the evidence from the side of the appellants and posting 9 the case for argument has been challenged in CRLA No.375 of 2017.
CRLA No. 389 of 2017
Mr. Bijoy Kumar Behura, learned Senior Counsel appearing for the appellants while challenging the impugned order dated 27.04.2017 passed by the learned Authorized Officer, Special Court, Bhubaneswar in Confiscation Case No.05 of 2011 in discharging the investigating officer and closing the evidence from the side of State-Applicant, contended that the default of the appellants in not further cross-examining the I.O. (P.W.1) on 26.04.2017 and 27.04.2017 was not intentional and as the local bar passed resolutions on those two dates and prayed for accommodation, the learned Authorised Officer should not have closed the evidence of P.W.1 which is illegal. It is further contended that further cross-examination of P.W.1 on recall be re-scheduled for at least five more days as the four days granted earlier was not sufficient. Learned counsel for the appellants filed a supplementary note on 31.07.2017 in Court after the argument was closed on 28.07.2017 on the points on which further cross-examination of P.W.1 is necessary. He filed the deposition copy of P.W.1 which shows that the witness was examined in chief on 28.10.2011, 15.11.2011, 12.12.2011, 10 05.01.2012, 19.01.2012 and on 13.03.2012, on which date the examination in chief was closed and cross-examination started and he was further cross-examined on 03.05.2012, 23.05.2012, 03.07.2012, 04.07.2012, 21.09.2012, 26.09.2012, 27.09.2012, 28.09.2012, 05.10.2012, 08.10.2012, 18.10.2012, 20.10.2012, 19.11.2012, 07.10.2016, 04.11.2016, 09.11.2016, 28.03.2017, 24.04.2017 and on 25.04.2017. It is contended that unless chance of further cross-examination of P.W.1 is afforded to the appellants, they will be seriously prejudiced.
Mr. Sanjay Kumar Das, learned Standing Counsel, Vigilance opposed the prayer and contended that the I.O. (P.W.1) was cross-examined at length for several days in the year 2012 and also in the year 2016 and again in the year 2017 as per the orders passed by this Court. It is contended that the attempt of the appellants in filing frivolous petitions one after the other was just to protract the litigation and thereby frustrating the time limit fixed under section 15 of the Orissa Special Courts Act, 2006 (hereafter '2006 Act') for disposal of the confiscation proceeding.
The chronology of events as narrated above indicate that the appellants are filing one after another petition before the learned Authorized Officer on one ground or the other and this 11 year, this appeal is the sixth journey of the appellants to this Court after the three disposed of proceedings i.e. CRLA No.04 of 2017, CRLA No.50 of 2017 and CRLA No.206 of 2017 and the two connected pending proceedings i.e. CRLA No.375 of 2017 and CRLA No.376 of 2017.
It cannot be lost sight of the fact that as per sub- section (5) of section 15 of the 2006 Act, every proceeding for confiscation of money or property or both under chapter III shall be disposed of within a period of six months from the date of service of the notice under sub-section (1) of section 14. On the last occasion, when the appellants approached this Court in CRLA No.206 of 2017, this Court taking note of submission of the learned counsel for the appellants that some material questions have been left out which are required to be put to the Investigating Officer (P.W.1) and further considering the submission made by the learned counsel that if day-to-day cross-examination of the I.O. is permitted in the first half of the day from 24th April 2017 onwards, the cross-examination would be completed by 27th April 2017, passed the order accordingly directing the I.O. (P.W.1) to remain present in Court sharp by 11 o' clock on 24.04.2017. The cost of summoning P.W.1 for further cross-examination was directed to be deposited by the 12 appellants by 19.04.2017 as would be fixed by the learned Authorized Officer. The appellants neither deposited the cost as directed by the learned Authorized Officer nor did the learned counsel for the appellants remained present at 11 o' clock on 24.04.2017 but appeared at 12.30 p.m. which would be evident from the order dated 24.04.2017. However, on the oral undertaking given by the learned counsel for the appellants to deposit the cost in course of the day failing which he will not cross-examine the witness on the day following, further cross- examination of P.W.1 was allowed. After the cross-examination on 24.04.2017 was over, the case was posted to 25.04.2017 and on that day also P.W.1 was cross-examined further and the case was posted to 26.04.2017. Even though the local bar members passed resolution on 26.04.2017 for accommodation on account of death of one of their bar members but the appellants should have remained present and submitted an application before the learned Authorized Officer expressing the difficulty of their counsel to attain the Court on that day. Everything was taken for granted by the appellants inasmuch as they were successful on three occasions before this Court challenging the orders passed by the learned Authorized Officer. When the Court posted the case to 27.04.2017 for further cross-examination of P.W.1 and 13 the witness was present on 27.04.2017, neither the appellants were present nor any steps were taken on their behalf, for which the learned Authorized Officer recorded the cross-examination as 'nil' and discharged the witness as per the order of this Court in CRLA No.206 of 2017 and closed the evidence from the side of the State-Applicant. The contentions of the learned counsel for the appellants that since a resolution was passed by the local bar on 27.04.2017 for accommodation to the bar members for preparation and arrangement of Lawyer's Day, he being a member of Orissa High Court Bar feeling the emotions and sentiments of the local bar did not attend the Court on 27.04.2017 is far from convincing. The order sheet dated 27.04.2017 indicates that the resolution was received in Court at about 12.30 p.m. and that was for accommodation of the local bar members. When the time was fixed at 11 o' clock for the further cross-examination of P.W.1 by this Court and the dates were fixed as per the submission of the learned counsel for the appellants before this Court, there was no earthly reason for the appellants and their counsel in not appearing before the learned Authorized Officer at right time and even not taking any steps on that day. The further cross-examination of P.W.1 could have easily proceeded on 27.04.2017 had the learned counsel for the 14 appellants presented himself before the learned Authorized Officer on that day at right time. Even the appellants were absent on that day. All these go to show that the appellants have scant regard for the judicial orders.
Punctuality is the hallmark of justice. Whosoever is connected with the justice delivery system should be punctual so that the valuable time of the Court is not wasted even for a moment. Criminal Court is not a play ground and criminal justice system is not a plaything. Nobody can be permitted in playing tricks with the Court proceeding and take everything for granted merely because the Court was sympathetic to him on some previous occasions. Once the Court is convinced that by placing misplaced sympathies and showing benevolence, things are moving in a wrong direction, it will be strict in bringing back the things in right direction. A party is disentitled to relief in a Court of law on account of his blameworthy conduct or laches as such relief cannot be granted arbitrarily but in exercise of sound judicial discretion. The profession of lawyers is an essential and integral part of the sound judicial system and lawyers are described as priests in the temple of justice. They assist the Court in dispensing justice and it would be well nigh impossible for the Court to administer justice without their help. They are 15 really and truly officers of the Court in which they daily sit and practice. The legal profession is a solemn and serious occupation. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of a civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, a lawyer has to conduct himself as a model for others in their professional lives. The Court must ensure that there is no incentive for wrong doer in the temple of justice.
The learned counsel for the appellants cross-
examined P.W.1 on twenty dates and on some other dates; the learned counsel did not choose to cross-examine P.W.1 even though the witness was very much present in Court. The cross- examination runs for more than fifty pages and on going through the same, it appears that all the relevant aspects have been covered. The submission of the learned counsel for the appellants that further cross-examination of P.W.1 on recall be re-scheduled for at least five more days is not acceptable in view of the previous conduct of the appellants. It cannot be lost sight of the fact that during course of hearing of CRLA No.206 of 2017, the learned counsel for the appellants submitted that the cross- 16 examination of P.W.1 would be completed by 27th April 2017 if day-to-day cross-examination is permitted in the first half of the day from 24th April 2017. When taking note of his submission, this Court disposed of the CRLA proceeding accordingly, after availing further cross-examination for two days i.e. 24.04.2017 and 25.04.2017 and not attending the Court for next two days i.e. 26.04.2017 and 27.04.2017 in spite of the presence of the witness (P.W.1) in Court, the learned counsel submits that he requires at least five more days for further cross-examination of P.W.1. It appears that the cross-examination of P.W.1 is an endless voyage for the appellants with an oblique motive to protract the confiscation proceeding. Therefore, I am of the humble view that the learned Authorized Officer, Special Court, Bhubaneswar is quite justified in passing the impugned order dated 27.04.2017 in discharging the investigating officer and closing the evidence from the side of State-Applicant.
Accordingly, CRLA No.389 of 2017 being devoid of merits stands dismissed.
CRLA No. 376 Of 2017
The learned Senior Counsel appearing for the
appellants while challenging the impugned order dated
24.04.2017 passed by the learned Authorized Officer in rejecting 17 the petition filed by the appellants to reassess the cost of summoning the investigating officer (P.W.1) and directing them to deposit the cost for availing further cross-examination of P.W.1, contended that the learned Authorized Officer should not have fixed the cost @ Rs.2500/- per day for further cross- examination of P.W.1 and thereby directing the appellants to deposit cost of Rs.10,000/- for four days i.e. 24.04.2017 to 27.04.2017. It is further contended that such fixation of cost is arbitrary and on the higher side and contrary to the provisions laid down in 2012 Rules.
This Court while disposing of CRLA No.206 of 2017 vide judgment and order dated 10.04.2017 in allowing the prayer of the appellants for further cross-examination of P.W.1 noted that the cost of summoning P.W.1 for further cross- examination shall be assessed by the learned Authorized Officer and the same shall be deposited by 19.04.2017 by the appellants. The learned Authorized Officer accordingly fixed the cost of the witness (P.W.1) @ Rs.2500/- per day vide order dated 19.04.2017. When the appellants filed petition for reassessment of the cost, the learned Authorized Officer held that no irreparable loss or injury will be caused to the appellants rather hardship will be caused to the I.O. (P.W.1) in attending 18 the Court at his old age after retirement. It was also taken note of that the appellants had earlier deposited cost of Rs.2500/- as per the order dated 21.03.2017 in view of the observation of this Court in CRLA No.50 of 2017.
2012 Rules framed by the State Government has been enacted in exercise of the powers conferred by section 312 of Cr.P.C. for regulating payment of reasonable expenses of witnesses attending any Criminal Court in the State for the purpose of any enquiry, trial or other proceeding under the Cr.P.C. This Rule was in supersession of the Odisha Criminal Court Witness (Payment of Expenses) Rules, 1963. P.W.1 is a retired government servant witness and therefore, he comes under class "B" as stipulated under Rule 5(1) of the 2012 Rules wherein it is stipulated that for the purpose of computing the expenses, a Criminal Court shall pay such expenses which shall ordinarily be a day's allowance which may be paid to the persons coming under class "B".
The learned Standing Counsel for the Vigilance Department placed an office memorandum dated 02.04.2011 issued by the Finance Department, Government of Odisha wherein the rates of travelling allowance (T.A.), daily allowance (D.A.), road millage allowance for journey etc. for different 19 grades of Government servants have been fixed. Since daily allowance and travelling allowance for a retired Government servant witness should be at par with the entitlement that he would have received had he been in the Government service as per 2012 Rules, it is the duty of the Court to take into account such aspects while deciding the reasonable expenses for such witness. The 2012 Rules also prescribes diet allowance for the witnesses.
Reasonable expenses are the amount which is consistent with what a reasonable person would incur in
attending the Court as a witness. Therefore, while fixing reasonable expenses, the Court has to see the status of the witness, from where the witness will come to depose and by what means. The number of days the witness is required to stay for giving his evidence is also another factor. There is no dispute that the expression "if it thinks fit" as appears under section 312 of the Cr.P.C. requires the Court to exercise the discretion judiciously and not arbitrarily. The words "reasonable expenses"
is subject to the rules made by the State Government i.e. 2012 Rules. Therefore, even if a Court directs a party to deposit the cost for summoning a witness, it is an approximate cost which according to the Court would be the reasonable expenses. 20 However, when the witness actually appears and submits his expenses bills, the Court has to take into consideration the 2012 Rules as well as other guidelines issued by the Government like the official memorandum issued by Finance Department dated 02.04.2011 and decide whether the bills submitted is reasonable, allowable or not. It cannot be lost sight of the fact that if the person is a retired government servant or any other witness whose health condition is not good or a disabled person, he should be given due allowance in attending the Court coming by motor car for his comfort, otherwise it would be a painful task for such person in attending the Court at the old age or in his sickness or in disability condition. It cannot be lost sight of the fact that after the enactment of 2012 Rules, about five years have already passed in the meantime and therefore, in view of the price hike of the diet as well as travailing expenses, there should be time to time revision in the rates fixed. The Court should not be rigid in fixing the amount otherwise the witness has to spent from his own pocket to come and depose. If a retired government servant witness produces genuine bills in support of his expenses then it becomes the duty of the Court to pay such expenses and not to deny the same on the ground that it appears to be little excess. Merely because the Court directs a 21 party to deposit certain amount towards the reasonable expenses for summoning any witness, it does not mean that the entire amount so deposited by the party will be paid to the witness bereft of what bills he submits. Once the witness submits his bills, the Court has to take into account 2012 Rules as well as other guidelines issued by the Government of Odisha and disburse the reasonable expenses to the witness and direct the refund of the balance deposited amount to the concerned party.
As per Rule 3(1)(b) of 2012 Rules, the Criminal Courts are authorised to pay the expenses of the witnesses in all cases in which they are summoned under the provisions of section 311 of Cr.P.C. at the rates specified in the schedule to the Rules unless otherwise directed. Proviso to Rule 7 (2) of 2012 Rules indicates that it shall be the duty of the Presiding Officer and Judge in-charge (accounts) of the station to ensure that such witness is paid the Bata money without inordinate delay. If reasonable expenses of the retired Government servant witnesses are not paid immediately to them after their appearance in Court, they may not come forward to depose promptly on receipt of summons and take one or the other plea in the event of which there is every likelihood of delay in disposal of criminal cases. Instances are there when the witnesses are to 22 wait for hours together for getting Bata money even after giving their evidence. Some of the witnesses even forego their claim for getting Bata money anticipating inordinate delay in payment. Therefore, it is the paramount duty of the Presiding Officer of a Court as well as the Judge in-charge (accounts) of the station to ensure that a retired Government servant witness or any other witness is not harassed for getting his legitimate dues towards the expenses which should not only be reasonable but should be paid promptly.
Therefore, I am of the view that the learned Authorized Officer has not committed any illegality in rejecting the petition filed by the appellants for reassessment of the cost in summoning the investigating officer (P.W.1).
Accordingly, CRLA No. 376 of 2017 being devoid of merits stands dismissed.
CRLA No. 375 of 2017
The learned Senior Counsel appearing for the appellants while challenging the impugned order dated
12.05.2017 passed by the learned Authorized Officer in closing the evidence from the side of the appellants and posting the case for argument, contended that after closure of the cross- examination of P.W.1 and also the evidence from the side of 23 State-Applicant, on the ground of non-deposit of the cost, the evidence from the side of the appellants should not have been closed. He further contended that if the appellants are denied to adduce evidence in support of their case, it will lead to grave prejudice and miscarriage of justice and therefore, the impugned order should be set aside.
It is not disputed that the appellant no.1 Narayan Nayak has been charge sheeted under section 13 (1) (e) read with section 13 (2) of the P.C. Act. Section 5 (1) of the P.C. Act lays down that while trying the accused persons, the procedure prescribed under the Cr.P.C. for trial of warrant cases by the Magistrates has to be followed. Trial of warrant cases by Magistrates comes under Chapter-XIX of Cr.P.C. and sub-section (3) of section 243 of Cr.P.C. states that before summoning any defence witness, the Magistrate may require the accused to deposit the reasonable expenses likely to be incurred by the witness in attending the trial. Though as per section 22 of the P.C. Act, there is some substitution in sub-section (1) of section 243 of Cr.P.C. but the applicability of sub-section (3) of section 243 Cr.P.C. has remained intact. Rule 11 of the Orissa Special Courts Rules, 2007 indicates that the provisions of Cr.P.C. shall, in so far as they are not inconsistent with the provisions of the 24 Act shall apply to the proceedings before the Authorised Officer.
Therefore, the applicability of sub-section (3) of section 243 of Cr.P.C. in a confiscation proceeding cannot be questioned.
Section 15 of 2006 Act states that the Authorised Officer has the duty not only to consider the explanation, if any, submitted as per the show cause notice issued under section 14 and the materials available before it but also give a reasonable opportunity of being heard to the person affected or to such other person if the person affected holds any money or property specified in the notice through such other person.
The learned Authorised Officer should not have abruptly closed the evidence from the side of the appellants mainly on the ground that the cost has not been deposited. Since it is stated by the learned counsel appearing for the appellants that the appellants are interested to adduce evidence, both oral and documentary in support of their stand, keeping in view the provision under section 22 (a) of P.C. Act which relates to the substitution in sub-section (1) of section 243 of Cr.P.C., it is directed that the appellants shall give in writing a list of persons whom they propose to examine as their witnesses and of the documents (if any) they propose to rely. Such list should be furnished before the learned Authorised Officer within a 25 period of two weeks from today. It is to be specifically mentioned while submitting the list as to in what way the evidences of those witnesses/documents are relevant in deciding the lis between the parties and whether the appellants will produce the witnesses or they require any issuance of process of the Court for compelling the attendance of any witness or for production of any document. The learned Authorized Officer has every right to refuse the issuance of process as contemplated under section 243 (2) of Cr.P.C., if it is made for the purpose of vexation or delay or for defeating the ends of justice. Since the confiscation proceeding is of the year 2011, every attempt should be made by the learned Authorized Officer to conclude the proceeding by end of this year.
Accordingly, the CRLA No.375 of 2017 is allowed and the impugned order dated 12.05.2017 passed by the learned Authorised Officer is set aside.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 18th August, 2017/Pravakar