Orissa High Court
Prafulla Kumar Patel And Ors. vs State Of Orissa And Anr. on 21 April, 2000
Equivalent citations: 2000CRILJ2724, 2000(I)OLR649
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. This is an application Under Section 482, Cr. P. C. for quashing the order dated 26.11.1997 taking cognizance Under Section 395, IPC in I CC No. 7 of 1996.
2. The case of the petitioners is that they are working as Supervisors in the Kuchinda Co-operative Agricultural Rural Development Bank at Kuchinda which is a Co-operative Bank tinder the Department of Co- operation. Opp. party No. 2 had taken a loan from the said Bank and he defaulted in payment of the instalments. The Assistant Registrar of the Co-operative Societies passed an award of Rs. 4,408.69 in favour of the Bank on 19.2.1994. In spite of the award the opp. party No. 2 did not pay the amount for which an execution was levied against opp. party No. 2 for realisation of the amount under the provisions of the Orissa Co-operative Societies Act, 1962. The Sales Officer-cum-ARCS issued notice to the petitioners in connection with the application for execution and requested them to be present on 27.2.1996. On getting notice the petitioners were present on the said date and thereafter proceeded to the village of opp. party No. 2 for attachment of the property as per notice dated 26.2.1996 issued by the Sales Officer. On the said date certain moveable properties of opp. party No. 2 were attached and the date of sale was fixed to 13.3.1996. The seized moveable properties were given in the zima of opp. party No. 2 who received the copy of the inventory list and the attached properties on 26.2.1996 in presence of witnesses. However, he filed a complaint against the petitioners on 29.2.1 996 stating that during his absence from the house as well as absence of his wife, all the petitioners broke open the lock of the house, forcibly entered inside and took away the properties mentioned in Schedule 'A' of the complaint petition. He further stated in the complaint petition that the police station did not receive the FIR as a result of which the same was sent by registered post on 28.2.1996.
3. After receipt of the complaint, the learned Magistrate appears to have directed the Officer-in-charge of Kuchinda Police Station to make an inquiry and submit a report. Annexure-6 is the report of the Officer- in-charge who has' reported that the attachment was executed as per the provisions of law and the petitioners had seized the articles in their official capacity as officers of the CARD Bank, Kuchinda. He further reported that no FIR was lodged in the police station. The learned Magistrate, however, ignoring the report of the Officer-in-charge, by order dated 26.1 1.1997 took cognizance Under Section 395. IPC.
4. Learned counsel appearing for the petitioners submits that under Rule 104 of the Orissa Co-operative Societies Rules, 1965 (for short, 'the Rules') it shall be lawful for the Sales Officer to force open any stall, stable, cow-house, granary, godown, out-house or other buildings or premises and he may also break open the door of any room of such dwelling house for the purpose of attaching property belonging to a defaulter. Proviso to the said Rule prescribes that it shall not be lawful for the Sales Officer to enter any dwelling house or premises or to attach any property or to put his seal to any door or place or break open any apartments, in dwelling house or premises appropriated to woman which, by the usage of the country are considered private. Relying on the said provision the learned counsel for petitioners submits that the entry into the house by breaking open the lock was in accordance with law and in discharge of official duties. It is admitted by the opposite party No. 2 in the complaint petition that both he and his wife were absent in the house at the time of the seizure was made. Therefore, the proviso to Rule 104 is also not attracted. .
5. None appeared for the complainant - opp. party No. 2 in spite of valid service of notice. From the documents filed before this Court it appears that opposite party No. 2 had defaulted in repayment of the loan amount and an award was passed. Even after passing of the award, opp. party No. 2 did not pay the amount for which an execution case was levied and in the aforesaid execution case it was decided to attach the properties of opp. party No. 2. Therefore, under Rule 104 of the Rules, the Sales Officer was competent to break open the lock and seize the properties for realisation of the amount. It further appears from the documents that opp. party No. 2 had undertaken to deposit the entire amount within seven days from 29.12.1 995;, but he failed to pay the amount. Annexure- 3 is the inventory list of the attached properties which indicates that some articles were seized and the complainant has given an endorsement in the said form that he on his own offered the materials for seizure and that he had taken the said materials on zima.
6. On consideration of the materials on record as well as the provisions of law and the report of the Officer-in-charge of Kuchinda P.S., I am of the view that the petitioners who are Supervisors of Kuchinda Co-operative Agriculture Rural Development Bank, lawfully entered inside the house of the complainant and seized the articles in discharge of their official duties. I, therefore, quash the order dated 26.11.1997 in which the learned S. D. J. M., Kuchinda, has taken cognizance Under Section 395, IPC and has issued non-bailable warrants of arrest against the petitioners.
Criminal Misc. Case is accordingly allowed.