Natabar Barik Vs. Basudev Barik and anr.

Natabar Barik vs Basudev Barik and anr.

Disposition Petition dismissed Court Orissa Decided Jun 20, 1997

~4 min read

https://sooperkanoon.com/case/531229

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/531229
Court: Orissa High Court
Judge: P.K. Misra, J.
Decided On: Jun 20, 1997
Case Number: Criminal Revision No. 521 of 1995
Subject: Criminal
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- 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 ...

Key legal issue: Criminal
Outcome / disposition: Petition dismissed
Acts & sections: Code of Criminal Procedure (CrPC) , 1973 - Sections 145

Parties & Advocates

Appellant / Petitioner

Natabar Barik

Advocate Y. Das, N.C. Mohanty, D.K. Dey and C.R. Satpathy

Respondent

Basudev Barik and anr.

Advocate A. Kumar Mohanty, S.R. Kanungo, B. Sarangi, S. Ch. Mishra, S.C. Sahoo and B.B. Das

Legal References

Acts: Code of Criminal Procedure (CrPC) , 1973 - Sections 145
Reported In: 1997(II)OLR131

Excerpt

.....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 executive magistrate has misdirected himself by concentrating on the question of ownership rather than on the question of actual possession. as is well known, an executive magistrate under section 145 cr.p.c., is required to find out the actual possession of a party without considering the 'right' of a party to remain in possession. since the executive magistrate had concentrated more on the question of ownership, i.e. to say the right to possess, the sessions judge has rightly reconsidered the question of possession by analysing the evidence afresh. 7. it is next contended that in view of the admitted fact that there was a partition and the disputed property had fallen to the share of vendor of the first party, the possession of the first party on the basis of the sale deed should be declared. from the materials on record it is evident that, in fact, there was a partition as evidenced by a registered deed of partition. however, the sessions judge has found that though the property had fallen to the share of second party member no. 1, second party member no. 2 was in charge of the property as the second party member no. 1 was remaining outside. in other words, the second party member no. 2 was in permissive occupation of the disputed property. the claim of the first party that he was in possession after 18.1.1994 has been negatived by the sessions judge on proper consideration of evidence and in exercise of revisional power. i am not inclined to delve into the evidence to reconsider the question of possession.8. in the result, i do not find any merit in this revision which is accordingly dismissed.

Full Judgment

P.K. Misra, J.

1. The first party member in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.) is the petitioner. The possession of the first party over the disputed land was decided by the Magistrate. The Second party member No. 2. filed a Criminal Revision before the Sessions Judge, Cuttack, which has been allowed. Against the said reversing order of the revisional Court, the present revision has been filed.

2. The second party members 1 and 2 are two brothers. The first party member claims that in a partition the disputed property had fallen to the share of second party member No. 1 and a registered deed of partition was executed. Thereafter the second party member No. 1 had constructed a house and was in possession. Subsequently the said property was purchased by the first party member by a registered document dated 17.1.1994 and possession was delivered on that date by second party member No. 1. However, on the very next day i.e. 18.1.1994, the second party member No. 2 created disturbance over the possession but on the intervention of punch members of the village the dispute was subsided. It is alleged that on 20.3.1994, taking advantage of the absence of the first party member, the second party member No. 2 forcibly occupied the disputed house. Accordingly, the first party member filed an application and preliminary order was passed by the Executive Magistrate initiating a proceeding under Section 145, Cr.P.C.

3. The second party member No. 2 in his written statement claimed that he was in possession of the disputed house which had been constructed with the help of money given by him.

4. The Executive Magistrate held that there was a partition in which the disputed property had fallen to the share of second party No. 1 and he had constructed a house over the disputed land and, thereafter, sold the property to the first party member. It was also found that the possession was taken by first party member on 17.1.1994 and though his possession was disturbed on 18.1.1994, he continued to be in possession until 20.2.1994, when he was forcibly dispossessed.

In revision, the said finding has been reversed by the Sessions Judge who held that though the allegation of the first party that he continued in possession after 18.1.1994 and subsequently dispossessed has not been established. It has been found by the Sessions Judge that prior to sale, second party No. 2 was in possession of the property as the first party No. 1 was not staying there.

5. In this revision, it is contended that the revisional Court should not have reversed the finding of the Magistrate on re-appreciation of evidence. It is further contended that in view of the finding that there was partition as evidenced by registered deed of partition and in view of the registered sale deed in favour of the first party, the possession of the first party should be upheld.

6. It is true that the scope of revision under the Code of Criminal Procedure being limited, the revisional Court should not enter into the area of re-appreciation of evidence, However, in the present case, it appears that the Executive Magistrate has misdirected himself by concentrating on the question of ownership rather than on the question of actual possession. As is well known, an Executive Magistrate under Section 145 Cr.P.C., is required to find out the actual possession of a party without considering the 'right' of a party to remain in possession. Since the Executive Magistrate had concentrated more on the question of ownership, i.e. to say the right to possess, the Sessions Judge has rightly reconsidered the question of possession by analysing the evidence afresh.

7. It is next contended that in view of the admitted fact that there was a partition and the disputed property had fallen to the share of vendor of the first party, the possession of the first party on the basis of the sale deed should be declared. From the materials on record it is evident that, in fact, there was a partition as evidenced by a registered deed of partition. However, the Sessions Judge has found that though the property had fallen to the share of second party member No. 1, second party member No. 2 was in charge of the property as the second party member No. 1 was remaining outside. In other words, the second party member No. 2 was in permissive occupation of the disputed property. The claim of the first party that he was in possession after 18.1.1994 has been negatived by the Sessions Judge on proper consideration of evidence and in exercise of revisional power. I am not inclined to delve into the evidence to reconsider the question of possession.

8. In the result, I do not find any merit in this Revision which is accordingly dismissed.

Same Court & Year Orissa · 1997 Same Parties Natabar Barik vs Basudev Barik and anr. Same Subject Criminal Same Judge P.K. Misra, J. Acts & Sections Code of Criminal Procedure (CrPC) , 1973 - Sections 145

Criminal