Lalita Nandi Vs. State of Orissa - 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]. - as either instigating a person to do any act complained against;l. rath, j.charge having been framed by the assistant sessions judge, cuttack, against the petitioner under sections 498 and 306 ipc, she has approached this court for quashing of the same. the petitioner is the sister-in-law of the deceased lady pramila. pramila had been married five to seven years back prior to 25-6-1986 on which date the committed suicide taking poison. the facts leading to the incident as alleged by the prosecution are that when all male members of the house were away and only pramila and the petitioner were present, they picked up quarrel over a comb with the petitioner alleging pramila as a thief and to have stolen the comb whereas pramila claimed the comb to be her own and the petitioner to have removed it earlier. during the quarrel the mother-in-law of the deceased, kausalya arrived and persuaded them not to quarrel. pramila refused to take food and took the same after much persuasion. both pramila and the petitioner ceased to talk to each other. pramila went upstairs with her two daughters and did not come down for cooking in the night. her husband pravakar came at about 10.00 p.m. and going upstairs, he called out that pramila had taken poison as she had quarrelled with lalita the petitioner. pramila was immediately removed to the hospital where she was treated for poisoning but she succumbed to the poison on the same day. f.i.r. was lodged by the brother of pramila on 24.7.1986. in the f.i.r. he alleged that the information regarding the death of pramila was not given to their family and that he received information at balikuda bus stand on 27.6.1986. on 28.6.1986 he went to the village of pramila and made enquiries. the information lodeged alleged harassment of pramila at the hands of her mother-in-law, the elder brothers of her husband and the present petitioner on account of non-fulfillment of a dowry demand regarding motor-cycle and of his having learnt from one of the elder brothers of the husband of pramila that she committed suicide on account of a quarrel with the petitioner. after investigation charge-sheet was submitted only against the present petitioner and the learned assistant sessions judge in consideration of the materials on record framed charge against her.1. in the charge-sheet as is conceded by the learned additional standing counsel, the only witnesses cited bearing on the question were kausalya the mother of the petitioner, pravakar the husband of the deceased and two other neighbours debaki and sukuri, besides the informant himself. so far as kausalya and pravakar are concerned, they did not speak of any previous quarrel with or harassment of the deceased but spoke that on the day of occurrence there had been a quarrel between the petitioner and pramila over a comb and that on account of such fact pramila had committed suicide. the two independent witnesses who are neighbours, stated in their statements before the police of having never heard and quarrel in the house of madan manik, i.e. the father-in-law of pramila or any harassment or ill-treatment to her by any of the family members. they however spoke about the quarrel between pramila and the petitioner on 25 6.1986 regarding the comb and each alleging the other as a thief. besides such witnesses, a bunch of letters supposed to have been written by pramila have also been seized. it is the admitted case that in the letters there is no allegation against the petitioner.2. it is on such state of facts the learned counsel for the petitioner submits that there is no material to frame charge under sections 498-a and 306, i.p.c. section 306, i.p.c. speaks of abetment of the offence of suicide. abetment itself is defined in section 107, i.p.c. as either instigating a person to do any act complained against; or engaging with one or more persons in conspiracy for doing an act, if the act takes place in pursuance of that conspiracy, in order to doing of the conspirated act; or intentionally aids, by any act or illegal omission to the doing of that act. taking the definition on its terms it cannot be said that there is any allegation against the petitioner of her either having instigated pramila to commit suicide or her having been engaged in any conspiracy. merely because there was a quarrel because of a comb between the two sisters-in-law abusing each other, and one commits suicide, it cannot be said that the other was instigating the act. there is also no case absolutely of the petitioner having intentionally goaded either by any act or illegal omission, to commission of the suicide. there is absolutely no evidence to that effect nor even the prosecution case is such and hence framing of a charge under section 306, ipc against the petitioner is wholly misconceived.3. the next is consideration regarding the charge under section 498-a, ipc. 'cruelty' has been denned in explanation to section 498-a, ipc, as wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical of the woman). considering the question of framing charge under the section, it was for the court to consider as to whether there are sufficient materials to make out a prima facie case of cruelty to have been practised by the petitioner against pramila and that the cruelty was of such a nature as to drive her to commit suicide. barring the statement in the f.i.r. which was itself lodged nearly a month after the occurrence and the statement under section 161, cr.p.c. by the informant before the police there is absolutely no evidence of any allegation against the petitioner. it is of course true that while considering the fact whether cruelty has been practised or not, merely a single day's evidence may not be meterial and if there has been history of consistent quarrel, abuse or harassment which reaches saturation point on any day from the point of view of the deceased, it may form sufficient meterial to hold that the cruelty was to such an extent as to drive the victim to commit suicide. this is not to say that a single day's event would not be sufficient in any case to frame charge under section 498-a, but the case at hand does not need any elaboration on that. the present case is most certainly not one where the incident could have any such effect and there is also no history of previous harassment. even in the section 161, cr.p.c. statement of the informant no attemps was made to relate the incident of 25.6,86 to the demand of dowry, i.e. the cause leading to the alleged previous harassments. the incident of that day appears to be a stray occurrence relating to a comb. even the two independent witnesses purported to be relied upon by the prosecution also categorically made statement before the police, as is found from the case diary, of their having never heard any quarrel in the house of madan manik or any harassment or ill-treatment to pramila by any of the family members much less of any such quarrel of the petitioner with the deceased. such an alleged incident of quarrel can hardly be said to be practising of cruelty to such an extent as to goad a person to commit suicide. impossible indeed is to find the house where such a feud does not take place in ordinary course of life and it is a matter of great travesty of justice to make one face a charge under the sections as charged only because of such a feud. the cruelty that was intended to be added as an offence under section 498-a, ipc is to be of such a nature as to deliberate causing of such mental or physical agony so as to develop a feeling in the woman concerned a sense of complete frustration so as to make being alive or dead equally meaningless, so that an attitude of purposeless existence completely overtakes the mental equilibrium. it does not matter whether the cause is a single incident or series of incidents.even a single incident may be sufficient to introduce the feeling in a person.4. there being no evidence worth-the-name to connect the petitioner with the crime and it would indeed be an abuse of the process of law to put her to trial under the charges.5. in the result, the impugned order framing charges against the petitioner under sections 306 and 498-a ipc is quashed.