Pampilas Bagh Vs. the State - 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]. - the appellate court did no better.b.k. behera, j.1. the petitioner stands convicted under section 457 and 380 of the indian penal code (for short, 'the code') and has been sentenced under the first-mentioned section to undergo rigorous imprisonment for a period of two years and under the latter section to undergo rigorous imprisonment for a period of one month and to pay a fine of rs. 500/- and in default of payment thereof, to undergo rigorous imprisonment for a further period of three months with a direction that the substantive terms of imprisonment would run concurrently. the order of conviction recorded by the trial court has been maintained by the appellate court-2. the petitioner, it was alleged, committed house-breaking and entered into the dwalling house of tonkodhara khiller (p. w. 21 and committed theft of clothes during the night of the 10th july, 1980. he had then an iron instrument and a torchlight with him. he was caught and a report was lodged at the papdahandi police station. investigation followed and on its completion, a charge-sheet was placed and the petitioner was prosecuted being charged under sections 457 and 300 of the code. to bring home the charges, the prosecution had examined five witnesses. the petitioner had pleaded not guilty to the charges and had denied the accusations made against him.3. i have heard the learned council for the petitioner and the learned standing counsel for the state.4. there was no evidence whatsoever that the petitioner had committed theft of clothes from inside the house. merely because some clothes were lying outside at a time when the petitioner was caught inside the house, it could not be assumed that he was the author of the crime of theft of clothes from the dwelling house of p. w. 2.5. as far the offence of house-breaking, it is noticed that neither the trial court nor the appellate court had found out as to whether the petitioner had made entry into the house in any of the six ways enumerated in section 445 of the code. this section defines house breaking. as has been submitted at the bar, there was absence of proof that the petitioner had made his entry into the house in any of the six ways mentioned therein.6. in the judgment, the learned magistrate had formulated the point for determination thus :''(1) whether on the alleged occurrence night the accused has entered into the dwelling house of the informant after the hour of sunset and before the hour of sunrise in order to commit theft ?(ii) whether at the material point of time the accused had removed one printed sari, one dhoti, one banian and one spade from the house of informant with dishonest intention ?it is, therefore, apparent that the commission of an offence of house-breaking had not been kept in mind while formulating the point for determination. after examining the evidence, the trial court found :'from the consistent evidence of the prosecution witnesses as indicated above i find that there is ample evidence to come to a conclusion that on the date of occurence the accused had entered into the house of the informant with a torch light and iron rod (sundhi kathi) to commit theft and he had committed the theft of one printed sari, one dhoti, one banian, one spade from the house of the informant. in view of the above facts i find that the prosecution successfully established its case against the accused beyond all reasonable doubts. accordingly i hold the accused guilty under section 457/380 of the indian penal code and convict him there under.it is thus apparent from this finding that the trial court did a conclusion that the petitioner had committed the offence of house-breaking. the appellate court did no better. no specific finding sustained by reason was recorded by the appellate court' that the petitioner had committed the offence of house breaking. when a culprit is found to have entered the house of another, it cannot be assumed, in the absence of other evidence, that he had committed house-breaking. a charge under section 457 of the code must be substantiated by evidence and cannot be assumed from nothing. the mere presence of a person inside the house of another would not establish a case of house-breaking. if a person is charged of house-breaking and theft and the commission of theft is established, it would not follow that commission of the other offence of house-breaking has also been established.7. the order of conviction recorded against the petitioner under sections 457 and 380 of the code is illegal and misconveived and must have to be set aside.8. the petitioner had entered the dwelling house of p. w. 2 where he was caught during the nignt when he had an iron instrument and a tourch light with him. as has been submitted by the learned counsel for both the sides, the petitioner had committed the offence of house-trespass punishable under section 448 of the code.9. during the course of investgation and after his surrender to serve out the sentence before making this application in revision, the petitioner has been in custody for over three weeks. in my view, the period already undergone would meet the ends of justice.10. in the result, the revision is allowed in part. the order of conviction and sentences passed against the petitioner under sections 457 and 380 of the indian penal code is set aside and in lieu thereof he is convicted under section 448 of the indian penal, code and sentenced to sufter imprisonment for the period already undergone by him. the petitioner be set at liberty forthwith.