Kuber Padhan Vs. Chaturbhuja Kuar 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]. - having been satisfied that there existed apprehension of the breach of the peace. 2. it has now been settled on good authority that mere institution of a civil suit or a revenue proceeding the ultimate decision of which may be taken to be from a competent court does not take away the jurisdiction of a learned magistrate to institute a proceeding under section 146, criminal p. the purpose for which provision for such a proceeding has been made in the code of criminal procedure is well known.orderb.n. misra, j.1. this reference has been made by the learned sessions judge, bolangir kalahandi recommending the quashing of an order made by a learned magistrate by which he dropped the proceeding under section 145, criminal p.c. without giving a positive finding that there was no further apprehension of the breach of the peace. the recommendation of the learned sessions judge is that the said order should be vacated and the learned magistrate should be called upon to dispose of the proceeding in accordance with law.the learned sessions judge in his order of reference has referred to several cases. the impugned order of the learned magistrate goes to show that he had already drawn up a preliminary order under section 145, criminal p. c. having been satisfied that there existed apprehension of the breach of the peace. an application was made on behalf of the second party to the effect that the said proceeding should be dropped on account of two facts, firstly that thorn was already a determination in 1958 in an o. t. r. case regarding possession of the property, and secondly that a proceeding under section 26 (2) of the orissa land reforms act was pending. this application of the members of the second party prevailed with the learned magistrate and he came to hold that interim relief was available from the revenue officer in the pending o. l. r. proceeding and he, therefore, dropped the proceeding and directed the land to be released from attachment.2. it has now been settled on good authority that mere institution of a civil suit or a revenue proceeding the ultimate decision of which may be taken to be from a competent court does not take away the jurisdiction of a learned magistrate to institute a proceeding under section 146, criminal p. c. the purpose for which provision for such a proceeding has been made in the code of criminal procedure is well known. it is essentially to avoid the breach of the peace and, therefore, mere pendency of a suit or a revenue proceeding cannot be a substitute relief for such a proceeding in the circumstances, unless there is an interim arrangement made by the civil or the revenue court in the matter of possession by injunction or receiver the apprehension continues and notwithstanding the pendency of a civil suit or a revenue proceeding a magistrate has jurisdiction to continue the proceeding under section 145, criminal p. c.besides the o. l. r. court in a proceeding under section 26 (2) of the act can neither appoint a receiver nor make an interlocutory order for any other arrangement. this is a case where the o. t. r. decision is about 10 years old. it is true that the criminal courts are to work in aid of civil court decisions, and decrees of civil courts must always be honoured.but having examined some of the case. i find that where high courts have decided that criminal courts must work following the decrees of the civil courts, the cases are of recent decrees. for instance, in air 1934 pat 565, mahabir singh v. emperor the decree was only a few days old, in air 1947 pat 245 jang bahadur v. nazimul hague, the decree was about two months old, in : air1964ori204 banamali mohapatra v. bajra nahak, the civil court's decision was a year old, while in (1968) 34 cut lt 655 muralidhar nails v. ghatrubhuja, padhan the decree was a year and 3 months old. in the cases where the determination of a competent court is at a distant point of time the need for re-examining the claim for possession does arise. in the circumstances, i in agreement with the learned sessions judge would accept the reference. the result would be that the order of the learned magistrate dropping the proceeding stands vacated and he will be called upon to decide the case in accordance with law.

Judgment:
ORDER

B.N. Misra, J.

1. This reference has been made by the learned Sessions Judge, Bolangir Kalahandi recommending the quashing of an order made by a learned Magistrate by which he dropped the proceeding under Section 145, Criminal P.C. without giving a positive finding that there was no further apprehension of the breach of the peace. The recommendation of the learned Sessions Judge is that the said order should be vacated and the learned Magistrate should be called upon to dispose of the proceeding in accordance with law.

The learned Sessions Judge in his order of reference has referred to several cases. The impugned order of the learned Magistrate goes to show that he had already drawn up a preliminary order under Section 145, Criminal P. C. having been satisfied that there existed apprehension of the breach of the peace. An application was made on behalf of the second party to the effect that the said proceeding should be dropped on account of two facts, firstly that thorn was already a determination in 1958 in an O. T. R. case regarding possession of the property, and secondly that a proceeding under Section 26 (2) of the Orissa Land Reforms Act was pending. This application of the members of the second party prevailed with the learned Magistrate and he came to hold that interim relief was available from the revenue officer in the pending O. L. R. proceeding and he, therefore, dropped the proceeding and directed the land to be released from attachment.

2. It has now been settled on good authority that mere institution of a civil suit or a revenue proceeding the ultimate decision of which may be taken to be from a competent court does not take away the jurisdiction of a learned Magistrate to institute a proceeding under Section 146, Criminal P. C. The purpose for which provision for such a proceeding has been made in the Code of Criminal Procedure is well known. It is essentially to avoid the breach of the peace and, therefore, mere pendency of a suit or a revenue proceeding cannot be a substitute relief for such a proceeding In the circumstances, unless there is an interim arrangement made by the civil or the revenue court in the matter of possession by injunction or receiver the apprehension continues and notwithstanding the pendency of a civil suit or a revenue proceeding a Magistrate has jurisdiction to continue the proceeding under Section 145, Criminal P. C.

Besides the O. L. R. Court in a proceeding under Section 26 (2) of the Act can neither appoint a receiver nor make an interlocutory order for any other arrangement. This is a case where the O. T. R. decision is about 10 years old. It is true that the criminal courts are to work in aid of civil court decisions, and decrees of civil courts must always be honoured.

But having examined some of the case. I find that where High Courts have decided that Criminal Courts must work following the decrees of the civil courts, the cases are of recent decrees. For instance, in AIR 1934 Pat 565, Mahabir Singh v. Emperor the decree was only a few days old, in AIR 1947 Pat 245 Jang Bahadur v. Nazimul Hague, the decree was about two months old, in : AIR1964Ori204 Banamali Mohapatra v. Bajra Nahak, the civil Court's decision was a year old, while in (1968) 34 Cut LT 655 Muralidhar Nails v. Ghatrubhuja, Padhan the decree was a year and 3 months old. In the cases where the determination of a competent court is at a distant point of time the need for re-examining the claim for possession does arise. In the circumstances, I in agreement with the learned Sessions Judge would accept the reference. The result would be that the order of the learned Magistrate dropping the proceeding stands vacated and he will be called upon to decide the case in accordance with law.