Research › Browse › Judgment

Rajasthan High Court · body

1997 DIGILAW 1339 (RAJ)

Om Prakash v. Prem Raj

1997-11-13

AMRESH KUMAR SINGH

body1997
Honble SINGH, J.–Heard the learned counsel for the petitioner and the learned Public Prosecutor. (2). This petition under Section 482 Cr.P.C. is directed against the order dated 2nd February, 93 passed by the learned Additional Chief Judicial Magistrate, No.3, Jodhpur in C.R. No. 20/93, whereby the learned Additional Chief Judicial Magistrate directed that the vehicle be given in the ``Supurdagi of non-petitioner no.1 under Section 451 Cr.P.C. (3). At the very outset it may be pointed out that the petitioner has not cared to give relevant facts under Section 482 Cr.P.C. He has emphasised that he obtained auto rikshaw No. RSN 903 from Barkat Ali in part performance of the contract to sell, but he has deliberately avoided stating that another agreement to sell was executed in favour of Premraj (non-petitioner no.1). However, the facts mentioned in the order dated 2nd February, 93 passed by the learned Additional Chief Judicial Magistrate No.3, Jodhpur may be reproduced below:- (4). On 8th June, 92 the petitioner Omprakash (who is accused in the criminal case registered by the police), agreed to sale the auto rikshaw No. RSN 9023 to Premraj (non-petitioner no.2) for a sum of Rs. 17,000/-. In part performance of the contract to sell, Premraj paid a sum of Rs. 3,000/- at the time of agreement and agreed to pay the remaining amount alongwith the interest in monthly instalments of Rs.500/- each. The instalments were paid on 5th July, 92, 14th August, 92, 10th September, 92 and 5th December, 92. On 8th January, 93, a cheque of Rs. 1300/- was paid. It is an admitted case that the petitioner Om Prakash had given possession of the auto rickshaw No. RSN 903 to the non petitioner no.1 Premraj at the time of agreement. (5). On 13th January, 93 when the auto rikshaw was standing in front of the house of Premraj (non-petitioner no.1), the auto rikshaw was removed by the petitioner Om Prakash. At that time Premraj had gone to the market. When he returned from the market, he did not find the auto Rikshaw and on inquiry, he was told that the auto Rikshaw had been taken away by Om Prakash. Premraj, thereafter, lodged a first information report at the Police Station and on the basis of the first information report lodged by Premraj, the police registered a case. During the investigation, the police made recovery of the auto rikshaw. Premraj, thereafter, lodged a first information report at the Police Station and on the basis of the first information report lodged by Premraj, the police registered a case. During the investigation, the police made recovery of the auto rikshaw. Applications were filed before the learned Additional Chief Judicial Magistrate No.3, Jodhpur under Section 451 Cr.P.C. by both Premraj as well as Om Prakash in this petition. The learned Additional Chief Judicial Magistrate in view of the judgment of this Court in Bherudan vs. State of Rajasthan (1) held that Premraj (non petitioner no.1) was entitled to get the vehicle in his ``Supurdagi under Section 451 Cr.P.C. He therefore, passed an order to the effect that the auto rikshaw be given in the ``Supurdagi of Premraj subject to furnishing of that ``Supurdagi of Rs. 15,000/-. (6). Feeling aggrieved by the order passed by the learned Additional Chief Judicial Magistrate No.3, Jodhpur, Omprakash has filed this petition under Section 482 Cr.P.C. (7). The main thrust of the argument advanced by the learned counsel for the petitioner is that in this case, the petitioner Om Prakash is the registered owner of the vehicle and no offence of theft was committed and that the removal of the auto rikshaw from in front of the house of Premraj by the petitioner Om Prakash was lawful and in accordance with the terms of the agreement as one of the terms of the agreement was that in the event of non-payment of any one or more instalments, the seller of the vehicle would be entitled to take possession of the vehicle. In other words, the submission made by the learned counsel for the petitioner is that the term contained in the agreement that in the event of non-payment of one or more instalments, the petitioner (seller) would be entitled to take the vehicle in his possession, amounted to consent for the removal of vehicle from the possession the purchaser, namely, Premraj (non-petitioner no.1). It is also submitted by the learned counsel for the petitioner that there was no dis-honest intention behind removal as the removal of the vehicle from the possession of Premraj was in accordance with the terms of contract and as such the ingredients of the offence under Section 379 IPC was not made out. (8). It is also submitted by the learned counsel for the petitioner that there was no dis-honest intention behind removal as the removal of the vehicle from the possession of Premraj was in accordance with the terms of contract and as such the ingredients of the offence under Section 379 IPC was not made out. (8). It may be pointed out that in this petition, this Court is not directly concerned with the question whether the act of the petitioner does or does not amount to an offence under Section 379 IPC. The only question to be decided in this petition is whether the impugned order passed by the learned Additional Chief Judicial Magistrate No.3, Jodhpur on 2nd February, 93 directing that the vehicle be given in the ``Supurdagi of Premraj deserves to be interfered with by this Court under Section 482 Cr.P.C. However, in order to dispose of this petition, it is necessary to deal with the submissions made by the learned counsel for the petitioner because without dealing with them, it would not be possible to decide this petition. (9). In the instant case, police registered a case under Section 379 IPC. The offence of theft is defined in Section 378 IPC. Section 378 IPC provides that whoever, intending to take dishonestly any movable property out of the possession of any person without that persons consent, moves that property in order to such taking, is said to commit theft. Five explanations have been given under Section 378 and as many as 16 illustrations have been given, but they are not relevant for the present petition. (10). A bare reading of Section 378 IPC shows that in order to constitute an offence, three things are necessary: (a) Dis-honest intention to take the movable property from the out of the possession of any person. (b) Removal of property from the possession of that person without his consent. (c) actual removal of the property from that persons possession. (11). Neither Section 378 main part, nor the five explanations given below it lay down the law that if the dispute between the parties is of a civil nature, then Section 378 will have no application. My attention has not been drawn to any provision contained in the general exceptions, which may indicate that merely because, the dispute may be branded as a dispute of civil nature, the offence of theft cannot be committed. My attention has not been drawn to any provision contained in the general exceptions, which may indicate that merely because, the dispute may be branded as a dispute of civil nature, the offence of theft cannot be committed. Therefore, on a harmonious interpretation, it will have to be said that even in respect of disputes of civil nature, an act may amount to an offence if the ingredients laid down for constituting an offence are prima facie made out. There is nothing sacrosanct in the expression ``disputes of a civil nature so as to infer that since a dispute appears to be of a civil nature, the criminal law must stop playing its role. The provisions of the Indian Penal Code have to be interpreted by taking into consideration the words used in sections declaring the offences or creating offences with a view to find out what are the ingredients of the offence and whether in a given case those ingredients are prima facie alleged and proved. If the ingredients of the offence are alleged and proved, there can be no escape from the conclusion that the offence is made out and once, an offence is made out, the only thing which can be taken away the element of criminality from the act would be some provision in the general exceptions contained in the Indian Penal Code or any express provision of special law, which may remove the element of criminality from an act, which otherwise is squarely covered by a penal provision of the statute. In the instant case, my attention has not been drawn to any provision of general exceptions contained in the Indian Penal Code, nor to any special law, which may remove the element of criminality from an act which squarely falls within the ambit of Section 378 and 379 IPC. (12). The argument that the dispute is only of a civil nature, therefore, will have to be taken to mean that the ingredients of the offence are not made out in the sense that mens rea was not present. Whether mens rea in a given case was or was not present will again have to be looked int by finding out the ingredients of the offence and the facts of the case. That inquiry cannot be stopped by saying that since the dispute is of a civil nature, therefore, no offence is made out. (13). Whether mens rea in a given case was or was not present will again have to be looked int by finding out the ingredients of the offence and the facts of the case. That inquiry cannot be stopped by saying that since the dispute is of a civil nature, therefore, no offence is made out. (13). In the instant case, it is not disputed that the petitioner Omprakash entered into an agreement to seel the auto rickshaw in dispute to Premraj (non petitioner no.1) for a sum of Rs. 17,000/- and he received Rs. 3000/- in part performance of the contract. It is not disputed that after entering into the agreement to sell, the possession of the auto rikshaw in dispute was handed over to Premraj (non petitioner no.1). It is not disputed that the allegations made in the F.I.R., which are to the effect that Om Prakash removed the auto rikshaw from in front of the house of Premraj (non petitioner no.1) is prima facie proved. Therefore, the removal of the Auto Rikshaw from in front of the house of Premraj, as alleged in the F.I.R. will have to be regarded as a fact supported by the F.I.R. (14). After ascertaining these facts, two things remain to be inquired into. The first is whether there was any dis-honest intention and the second is whether the removal was without consent of Premraj. (15). Regarding the consent necessary for lawful removal of movable property from the possession of another for the purpose of taking out an act outside the purview of Section 378 IPC, the learned counsel for the petitioner has submitted that according to the terms of agreement Om Prakash, the seller was empowered to take the custody of the vehicle, if one or more instalements remained unpaid. In other words, it is submitted that the terms of the agreement do amount to consent for the removal of auto rikshaw from the possession of Premraj (non petitioner no.1). (16). Every consent by a human being is given in exercise of the personal liberty of that human being and personal liberty is protected by Article 21 of the Constitution. The giving of consent is dependent upon the development of a volition on the part of the person giving the consent. (16). Every consent by a human being is given in exercise of the personal liberty of that human being and personal liberty is protected by Article 21 of the Constitution. The giving of consent is dependent upon the development of a volition on the part of the person giving the consent. The faculty of the will or faculty of volition, with which the human beings are gifted is one of the most important faculties of the human beings and it would not be an exaggeration to say that without this faculty the lives of individuals and of the society would become meaning- less or rather impossible. It is the faculty of will of the human beings, which is at the base of almost all the human activities which are performed by the individual, whether in isolation or collectively. It is this faculty of will which has been developed by human beings after much, endurance and schooling and mastering various disciplines of life. One of the characteristics of this faculty of will is that human beings can apply their mind from time to time to all the facts, to which they pay an attention or among which they are placed. In other words, every human being has the mental faculty of attending to the matters of this universe and to take a decision about them. Consciousness is therefore, described as a stream, which is ever flowing and never stops unless the curtain on life is dropped. Right to take notice of things, right to form opinion and right to take decision from time to time during the span of ones life, must therefore, be regarded as one of the most important personal liberty of the individual, within the meaning of Article 21 of the Constitution, because without this, there can be no life and much less a evoluation of any faculty or any other achievement which humanity is capable of making. Once, it is realised that the right to form opinions, revise opinions, take decisions, alter them or modify them according to ones judgments and discretion, is an integral part of the personal liberty guaranteed under Article 21 of the Constitution, there can be no escape from the conclusion that unless there is a law depriving a human being of this right, the right cannot be presumed to have been taken away by another per- son. Consent is necessary in at least sections, (i) Section 378 IPC and (ii) Section 375 IPC. Consent in both these sections is given by the concerned persons in exercise of peraonal liberty as described above. Can it be said that the consent once given, is a good consent for all time to come without any law requiring that such consent should be treated as a valid consent for all time to come? In view of the fact that it is the part of personal liberty guaranteed by Article 21 of the Constitution that every person has a right to know, form his opinions, and take decisions from time to time during the whole span of his life, it must be said that in the matter of consent under Section 375 and 378 IPC, the human beings have a right to apply their mind afresh from time to time and form their opinions in such way as they deem fit. Hence, there can be no presumption that consent given once, is a consent for ever. This is why if a person is proposed to be stopped from revoking a consent already given or a representation already made by that person, it is necessary that there should be a well established rule of estoppel and it should be applicable. In the absence of a rule of estoppel, which may be applied successfully, the person cannot be stopped from revising his consent from time to time. My attention has not been drawn to any provision of law, which may provide that consent given by the purchaser at the time of entering into the agreement, cannot be revoked by him subsequently. Prima facie, I am of the opinion that the consent for the purpose of these two sections namely, Section 375 and 378 IPC, can be legitimately revised by the concerned person in exercise of his/her personal liberty from time to time, and therefore, there can be no presumption that consent given once was a consent valid for all time to come. Hence, as and when such consent is necessary, the person, who needs the consent must obtain fresh consent, if he wants to escape the punishment prescribed by law. Hence, as and when such consent is necessary, the person, who needs the consent must obtain fresh consent, if he wants to escape the punishment prescribed by law. I am therefore, not satisfied that the terms of the agreement can be regarded as evidence of consent for removal of the vehicle from the possession of non petitioner no.1, for all times to come. (17). The second question is whether prima facie there was a dis- honest intention. Indian Penal Code defines dis-honesty in Section 24 IPC by prescribing that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing ``dishonestly. Dis- honesty within the meaning of Section 24 IPC occurs in either of the two situations (i) when a person intends to obtain a wrongful gain for himself and also (ii) when a person cause wrongful loss to another person. The seller who wants to obtain the possession of the vehicle for the purpose of realising a part of the unpaid price of the vehicle may not be said to be possessing any intention to cause wrongful gain for himself, but if he does not rescind the contract and does not refund the money already received by him and yet he takes the vehicle without the consent of the person to whom the vehicle has been sold, he is definitely causing wrongful loss to that person. A contract may be rescinded or it may enforced. If a contract is rescinded, normally the parties who have obtained some benefits under the contract mustrestore the benefit from the party from whom it is has been obtained. If a party removes the property of the possession of another and the benefit which has been received under the contract from that party is not refunded then it can be safely said that wrongful loss is being caused to the other party. Viewed in this light at this stage, it is not possible to say that the element of dis-honesty was altogether absent. (18). For the reasons mentioned above, I do not find any force in this submission that offence of theft was not made out or that the petitioner Omprakash is the person entitled to obtain possession of the vehicle. Viewed in this light at this stage, it is not possible to say that the element of dis-honesty was altogether absent. (18). For the reasons mentioned above, I do not find any force in this submission that offence of theft was not made out or that the petitioner Omprakash is the person entitled to obtain possession of the vehicle. The learned Additional Chief Judicial Magistrate No.3 Jodhpur had a judicial discretion to consider who was the fitest mane in whose custody vehicle should be given and he has exercised his discretion, which cannot be said to be illegal or perverse in the facts and circumstances of the case. (19). I, therefore, find no merit in this petition under Section 482 Cr.P.C. and decline to interfere with the order dated 2nd February, 93 passed by the learned Additional Chief Judicial Magistrate No.3, Jodhpur. While parting with the case, I may observe that justice is not a one sided phenomena. The scales must be balanced. Whatever may be the considerations advocated by the sellers of the pro- perty, emphasising their right to recover unpaid price of the goods sold by them, the rights of those citizens, who purchased goods according to laws of contract and, who in legitimate manner obtained the possession of the goods, cannot be ignored and therefore, what the Courts have to do is to interpret the law, as it is whether it is a penal provision or it is a provision relating to law of contract and its enforcement. If an act amounts to theft, it will have to be treated as a theft and the necessary investigation and inquiry for ascertaining the presence of the ingredients of the offence will have to be made and after the appropriate proceedings necessary order will have to be given. It is for the legislature to consider whether the disputes of civil nature should be kept out of the purview of penal provisions. It is for the legislature to consider whether the disputes of civil nature should be kept out of the purview of penal provisions. Pre- sently, I say not more than this that under no law the disputes which are of civil nature are kept out of all penal provisions and therefore, the argument that the dispute if of a civil nature is at best argument tentamounting to the argument that the ingredients of the offence are not made out and it is always a question of fact and every finding by a Court in this behalf would therefore, be a finding of fact con- fined to the particular facts of the case. (15). The petition is disposed of accordingly.