Sri Sanjay Kumar Das Burma Vs. State of Orissa - Court Judgment

Excerpt:
criminal - cognizance - order of - sections 177 and 181 of indian penal code 1860(ipc) and section 468 of code of criminal procedure 1973 (cr.p.c) - petitioner was director of company - petition filed nomination paper regarding election - complainant filed complaint regarding suppression of fact petitioner was possessing shares at the time of nomination - inquiry initiated by authority against petitioner and found that petitioner was having share at time of election - authority ordered for taking cognizance of petitioner under sections 177 and 181 of act - petitioner was not satisfied because action was too much late and barred by time - hence, present petition - held, according to section 468 if punishment is less than one year then cognizance should be taken within one year - in instant case it is clear that punishment under sections 177 and 181 of ipc is less than one year and proceeding for taking cognizance is started after lapse of one year - therefore, continuation of criminal proceeding will amount to abuse of process of court - petition allowed accordingly - 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 on the basis of the petition, the sub-collector-cum-returning officer was directed to conduct an inquiry and who, after inquiry came to a conclusion that though the complainant disclosed that he was a director of the company, named above, yet he failed to disclose the shares and debentures held by him and his spouse in the said company. 1,000/-.so, according to the petitioner, the period of limitation will be a period of one year and in the instant case, as the offence alleged to have been committed on 02.04.2004, yet the cognizance has been taken on 12.11.2007, which is clearly hit by section 468, cr. the petitioner in his nomination paper has clearly stated that he is the director of the company named above and he has also mentioned the number and specifications of vehicles, but there is omission in giving details of the shares and debentures held by him and his spouse. reported in (2007) 38 ocr (sc) 365 :2007 (ii) olr 608, the apex court has held that the principle underlying exercise of jurisdiction by the high court under section 482 of the code of criminal procedure is now well-settled viz. it is also well settled in the case of bhajan lal (supra) that the petitioner should not go through the rigorous of trial, if the ingredients so disclosed in the complaint petition do not make out a case for the offence alleged.b.p. ray, j.1. this is an application under section 482 of the code of criminal procedure (in short, 'cr.p.c') filed by the petitioner with a prayer to quash the order of cognizance taken in i.c.c. no. 445 of 2007 for offence under sections 177/181 of the indian penal code 'in short, ('i.p.c.').2. the brief story of the complainant is that during filing of nomination papers for 57-brahmagiri assembly constituency of puri district in the year 2004, the present petitioner filed his nomination concealing information regarding holding of his shares and his spouse in a company running in the name and style, 'neelachal builders pvt. ltd.' the complainant before the trial court was the sub-collector, puri-cum-returning officer of bhrahmagiri assembly constituency. on the basis of the complaint, lodged by one pramod kumar pradhan, an enquiry was conducted which culminated in filing of the complaint before the s.d.j.m., puri. on the basis of the complaint petition and the documents provided, the s.d.j.m., puri took cognizance on 12.11.2007 for the offences as aforesaid. the further case of the complainant is that on 12.11.2006 one pramod kumar pradhan, the president, block congress committee, brahmagiri filed a written complaint with the election commission of india alleging therein that the petitioner filed his nomination papers along with an affidavit wherein he had declared that neither he nor his spouse was holding any shares or debentures in the company named above. but on the basis of the petition, the sub-collector-cum-returning officer was directed to conduct an inquiry and who, after inquiry came to a conclusion that though the complainant disclosed that he was a director of the company, named above, yet he failed to disclose the shares and debentures held by him and his spouse in the said company. the petitioner challenges the order of cognizance on the ground that as per section 36 of the representation of peoples act, 1951 whenever any candidate files nomination paper it is the statutory obligation of the returning officer to scrutinize the nomination papers and conduct inquiry, if necessary. according to the petitioner, his nomination papers were filed on 02.04.2004 along with all the relevant documents and affidavit. but the returning officer had never preferred to enquiry into the documents. according to him, a belated inquiry raises doubt on the veracity of the prosecution story and it is made with a political motive by his rivals to discredit him. it is further indicated that as per section 468, cr.p.c. for any offence which is punishable with imprisonment for a period not exceeding one year, the period for taking cognizance will be one year. as per section 177, i.p.c., the punishment prescribed is for a period of six months or fine of rs. 1,000/-. so, according to the petitioner, the period of limitation will be a period of one year and in the instant case, as the offence alleged to have been committed on 02.04.2004, yet the cognizance has been taken on 12.11.2007, which is clearly hit by section 468, cr.p.c. the petitioner in his nomination paper has clearly stated that he is the director of the company named above and he has also mentioned the number and specifications of vehicles, but there is omission in giving details of the shares and debentures held by him and his spouse. but, the said omission can never be termed as deliberate. a copy of the nomination paper has been filed by the petitioner as annexure-6 and page no. 25 of the said annexure indicates that he is the director of neelachal builders pvt. ltd. and the details of the motor vehicle owned by the company. according to him, as he has disclosed himself as a director of the said company, it pre-supposes that he is holder of the shares and debentures. hence, there was no mala fide intention on the part of the petitioner for suppression of fact. according to him, the cognizance taken is without application of mind and the same is liable to be quashed.3. the trial court record in i.c.c. no. 445 of 2007 is available to this court and the order of cognizance passed therein is as follows:order dated 12.11.2007.the record is put up today for orders.perused the complaint petition and the copies of documents such as the petition filed by pramoda kumar pradhan, advocate (annexure-a). information obtained from registrar of companies, orissa, cuttack (annexure-b), copy of letter no. 9210 dated 26.12.2006 of sub-collector, puri (annexure-c), copy of affidavit filed by sri sanjaya kumar das burma at the time of filing nomination (annexure-d), copy of the letter no. 8740 and copy of letter no. 5706 dated 22.10.2007 of government in home election department (annexure-f) filed by sub-collector, puri and returning officer, 57-brahmagiri assembly constituency, i find prima facie materials under sections 177/181, i.p.c. hence cognizance of the offences under sections 177/181, i.p.c. is taken. i also find sufficient materials against the accused to issue process. hence, issue summons against the accused fixing 18.01.2008. for appearance. complainant to file within three days.4. let us first see the provisions of sections 177 & 181 of the i.p.c.177. furnishing false information.- whoever, being legally bound to furnish information on any subject to any public servant, as such furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both:or, if the information which he is legally bound to give respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with imprisonment of either description for a term which may extend to two years, or with fine, or with both.181. false statement on oath or affirmation to public servant or person authorized to administer an oath or affirmation.- whoever, being legally bound by an oath or affirmation to state the truth on any subject to any public servant or other person authorized by law to administer such oath or affirmation, makes, to such public servant or other person as aforesaid, touching that subject, any statement which is false, and which he either knows or believes to be false or does not believe to be true, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.5. in the background of the aforesaid provisions of offences for which cognizance has been taken, let us see the requirement in the nomination paper, wherein the requirement, as indicated, is to give details of movable assets/motor vehicles and the following details have been given by the petitioner in the document along with his nomination paper:(a) details of movable assets:(v) motor vehicle:self :- (1) bajaj pulser motor cycle, bearing registration no. or-02-x-0081(2) ashok leyland bus bearing regd. no. or-02-a-4473i being the director of nilachal builders private ltd. i am giving the following data regarding the motor vehicle owned by the company as under:1. mahindra & mahindra (hard top jeep) scorpio bearing regd. no. or-02w- 8600.2. hero honda cd 100-ss motor cycle bearing regd. no. or-05k-4867.6. so, the petitioner has disclosed that he is the director of neelachal builders private limited, but according to him, he has not stated the number of shares held by him. there is also no specific provision to disclose the number of shares, but fact remains that share is always included under the movable assets. if there was an iota of doubt in the mind of returning officer, he could have held detailed inquiry into the same. in this regard, learned counsel for the petitioner submits that there is nothing on record to show that the petitioner has furnished the false information on the subject which he knows or has reason to believe to be false. so, taking the detailed information required in the nomination papers and the information disclosed by the petitioner cannot be construed that knowingly a false information has been given. the petitioner with all truthness has disclosed that he is a director of the company and he owns movable assets i.e. two vehicles.7. learned counsel for the state submits that though the petitioner is a very seasoned politician, he cannot escape from the liability of section 177 i.p.c. and that the information supplied by the petitioner is not to be believed as he has given false information. according to learned state counsel, every attempt has been made to conceal the movable assets. but neither the complaint petition nor the document filed by the complainant discloses such motive of the petitioner. so far as limitation is concerned, for the offence under section 177, i.p.c, the punishment is simple imprisonment for a term which may extend to six months and section 468 of the cr.p.c. provides limitation for taking cognizance of the aforesaid offence is one year. admittedly, the complaint petition has been filed beyond the period of limitation. there is no material what-so-ever to show that the petitioner has furnished any false information. therefore, the prosecution of the petitioner under section 177 i.p.c. is unwarranted in the facts and circumstances of the case. as no case is made out under section 177 i.p.c., the question of proceeding under section 181, i.p.c. absolutely does not arise. learned trial court without taking this aspect into consideration has taken cognizance in a mechanical manner. but learned counsel for the state further submits that in these cases ordinarily the court should not interfere in the matter under section 482 of the cr.p.c. and the trial court should be allowed to proceed with the trial and all these questions can be raised during the trial. the principle relating to exercise of jurisdiction by the high court under section 482 of the cr.p.c. is that a complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. in this regard, i may refer to a decision reported in : 1992crilj527 (state of haryana v. bhajan lal) in which the above mentioned principles are illustrated by the apex court while interfering with the order of cognizance in a proceeding under section 482 cr.p.c. in the case of veer prakash sharma v. anil kumar agarwal and anr. reported in (2007) 38 ocr (sc) 365 : 2007 (ii) olr 608, the apex court has held that the principle underlying exercise of jurisdiction by the high court under section 482 of the code of criminal procedure is now well-settled viz. that the allegations contained in the complaint petition even if given face value and taken to be correct in its entirety do not disclose an offence or not is the question. it is also well settled in the case of bhajan lal (supra) that the petitioner should not go through the rigorous of trial, if the ingredients so disclosed in the complaint petition do not make out a case for the offence alleged.8. in view of such, as i have held earlier that no case is made out under sections 177 & 181, i.p.c. and over and above, as the cognizance of the offences has been taken beyond the period of limitation as prescribed under section 468 of the cr.p.c, in my considered opinion, the continuation of the criminal proceeding will amount to abuse of process of the court, for which, i have no hesitation to quash the cognizance taken against the petitioner for the offence under sections 177 & 181, i.p.c.9. accordingly, the order of cognizance dated 12.11.2007 passed by reamed s.d.j.m., puri in i.c.c. no. 445 of 2007 is quashed.the crlmc is accordingly allowed.