JUDGMENT
L. Rath, J.
1. These two revisions have been preferred as against the judgments passed in Criminal Appeals Nos. 89-B of 1981 and 90-B of 1981 by the Sessions Judge, Bolangir, confirming the judgment in G. R. Case No. 121 of 1976 (T. R. No. 63/67) of the Subdivisional Judicial Magistrate, Titilagarh, convicting both the petitioners Under Section 379, Indian Penal Code and sentencing them to pay a fine of Rs. 500/- each, in default to suffer simple imprisonment for one month. Since both the petitioners had been tried in one case and as against their convictions had preferred two different appeals which had been disposed of by a common judgment, against which the present revisions are preferred, they have been taken up together and are being disposed of by one judgment.
2. The prosecution case, briefly stated, is that Smt. Nandini Satapathy, the then Chief Minister of Orissa had come to Titilagarh on 10-4-1976, The informant in the case is P. W. 1 who was an active member of the Congress Party and had the charge of organising the Congress Party meeting etc. He had borrowed a jeep bearing registration No. ORR 669 from one S. L. Mediratta for Congress Party work and was having the jeep under his control which, while had been parked in front of the house of P. W. 1 was taken away by the petitioners without his consent. P. W. 1, lodged the F.I.R. on the next day on 11-4-1976 on the basis of which a case was registered and after investigation, petitioners were charge-sheeted Under Section 406/114, Indian Penal Code and Under Section 126, Motor Vehicles Act. Subsequently however, after hearing the parties charge was framed Under Section 379, Indian Penal Code
3. The defence of the petitioners in the case was substantially the same and was to the effect that the vehicle had been brought for party work and was being utilised for the same purpose. It was fitted with the party flag and many persons had been using it. The petitioners thus claim a bona fide right of user of the vehicle. The learned Subdivisional Judicial Magistrate however held that the removal of the jeep from the custody of P. W. 1 by the petitioners constituted an act of theft and hence he accordingly convicted the petitioners as above. The finding of the learned Subdivisional Judicial Magistrate was confirmed by the Sessions Judge in appeal.
4. Mr. Deepak Misra, appearing for the petitioners in both the cases, has urged that the convictions of the petitioners are wholly unwarranted and misconceived since (i) the F. I. R. lodged by P. W. 1 was admittedly grossly delayed for which absolutely no explanation was forthcoming and hence the prosecution story must be rejected out right and (ii) the petitioners were all along working under a bona fide claim of rights and hence there could be no finding that they were guilty of theft.
5. So far as the first point is concerned, Mr. Misra with permission of the Court, placed some portions of the evidence relevant to the contention The F.I.R. (Ext. 1) was admittedly lodged by P.W. 1 on 11-4-1976 at 10.30 A. M. P. W. 1 is an experienced legal practitioner as he himslf claims. In the FIR it was stated by him that he had reliable information that the petitioners had left the vehicle uncared for near about Bhattipara and he requested the police to take appropriate action. It thus appears from the FIR that the vehicle had not been returned to the P.W.1 by the time it was lodged. However” in his evidence, the P.W. 1 stated that at 12.30 P.M., on 10-4-1976 he discovered the vehicle to be missing from the front of his house where it had been parked and thereafter he enquired and came to know that the petitioners had taken away the same. Next day morning, i. e., 11-4-1976 at about 8 to 9 A. M. the vehicle was delivered to him by the petitioners Lalitmohan, one Md. Yakub and another Nilambar (P. W. 4) who was driving the same. In the next breath he stated that he lodged the FIR before getting return of the vehicle, which statement it is apparent, is not a truthful one. The FIR was thus lodged with a delay of about 22 hours with a fabricated story of the vehicle having not been returned even though by then the vehicle * had already been returned. The gross delay in lodging the F.I.R. makes the entire prosecution story wholly suspicious.
6. It is well-settled that an unexplained delay in lodging the FIR. is fatal to the prosecution case. While it is true that the delay in lodging the F.IR. would not affect the prosecution if the delay has been satisfactorily explained, yet where no explanation is forthcoming, a delayed F.I.R. must be viewed with great suspicion and it would be unsafe to sustain a conviction in a case started upon such F.I.R. Dealing with the question, the Supreme Court held in AIR 1978 S. C. 501 (Thulia Kali v. The’ State of Tamil Nadu) as follows :
“First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. ‘The importance of the report can hardly be overestimated from the standpoint of the accused. The object of Insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation, It is therefore, essential that the delay in lodging of the first information report should be satisfactorily explained.
When an occurrence is not reported for more than 20 hours after the occuirence even though the police station is only two miles from the place of occurrence it is unsafe to base conviction upon the evidence.”
The above observations apply with full force to the case at hand since it can safely be said that the delay in lodging the F.I R has occasioned in embellishment of the truth and that a tailored version was presented as a result of afterthought. Dealing with the same question, the Supreme Court again held in AIR 1974 S. C. 2118 (Lalal @ Dindoo and Anr. v. State of U. P. ) that even though delay in Iodging the F. I. R. is an important circumstance, yet it would be of no consequence when the same has been reasonably explained. In another decision of this Court in Criminal Revision No. 533 of 1981 (Bhagaban Mohapatra and Anr. v. Satrughna Mohapatra) disposed of on 2-4-1985, it was held that where there was a delay of three days in lodging the F.I.R. and the only explanation offered was the inaction of the police in the matter but no material had been produced in support of the said plea, the delay was to be regarded as unexplained and fatal to the complainant’s case. Of course in another decision of the Supreme Court, AIR 1976 S. C. 2455, (Ram Murty and Anr. v. State of Haryana) it was held that where there was some delay in filing of the first information report and the explanation for the delay was not very satisfactory, yet it would’ not be a ground for disbelieving the prosecution evidence particularly when it had been accepted both by the Additional Sessions Judge and the High Court. It is apparent that Their Lordships in the case were not laying down a general proposition of law but were dealing with the particular facts of the case before them and the judgment was delivered in that context only. P.W. 1, who is a legal practitioner of experience, can be presumed to be aware of the consequences of lodging a delayed F.I R. and has not come forward with any explanation absolutely for the delay. To me it appears, that the delay in this case is directly responsible for introduction of afterthought and hence the conviction of the petitioners must be set aside on such count only.
7. However, the petitioners are also entitled to relief on the second point urged In suport of such contention Mr. Misra placed before me some portions of the evidence, it goes without question that the jeep had been obtained for party work. P. W. 1 himself so stated in the F.I.R. and even in his deposition before the Court, he admitted that he was in charge of the organisation of the party meeting etc. and that he had borrowed the vehicle from S. L. Mediratta for the purpose. P. W 1 also admitted that the petitioners also belong to his party. P. W. 8 is the driver of S. L. Mediratta attached to the jeep. He also stated in his deposition that prior to the taking away of the vehicle by the petitioners, it was used for vote propaganda of the Congress Party and that the petitioners were members of the Congress Party. P. W. 6 is the Investigating Officer who also deposed as follows :
“The jeep was brought for the purpose of attending the programme of the then Chief Minister who was then camping at Titilagarh. Accused and P. W, 1 were then followers of Congress Party. ”
8. From the perusal of depositions as above, it cannot be said that the petitioners did not have the impression of a bona fide claim of right to use the jeep. It can hardly be stated that they had the intention of dishonestly removing the jeep out of the possession of P. W. 1. There does not appear to be any intention in the petitioners of causing either wrongful gain to themselves or a wrongful loss to the P. W. 1. It is settled-position of law that an act would not amount to theft unless not only there is an absence of a legal right but also there is no appearance or colour of a legal right. The Supreme Court in AIR 1962 S. C. 586 (Suvvari Sanyasi Apparao and Anr. v. Boddepalli Lakshminarayana and another) held as follows :
“…It is settled-law that where a bona fide claim of right exists, it can he a good defence to a prosecution for theft. An act does not amount to theft, unless there be rot only no legal right but no appearance or colour of a legal right. In 2 East PC. 659, the Saw was stated a long time ago thus :
‘If there be in the prisoner any fair pretence of property or right, or if it be brought into doubt at all, the Court will direct an acquittal.’
And according to 1 Hale P. C. 509, the best evidence is that the goods were taken quite openly. The law thus stated by East and Hale has not been altered in modern times. There are numerous cases in which Courts in India have recognised a bona fide claim of right as a defence to the charge of theft. See Ratanlal, Law of Crimes, 19th Ed. P. 933.”
Applying the above dictum the act committed by the petitioners would certainly not amount to theft. The removal of the jeep by the petitioners was most openly done and it is of significance that the vehicle was also returned by the petitioners on the next day on their own accord. Thus the claim exercised by the petitioners was more than a fair pretence of right and hence a charge Under Section 379, Indian Penal Code, is nor sustainable against them. The position of law was again reiterated by the Supreme Court in AIR 1965 S. C. 585 ( Chandi Kumar Das Karmakar and Anr. v. Abanidhar Roy). Relying on AIR 1962 S. C. 586 it was held as follows :
“Now the ordinary rule that mens rea may exist even with an honest ignorance of law is sometimes not sufficient for theft. A claim of right in good faith, if reasonable, saves the act of taking from being theft and where such a plea is raised by the accused it is mainly a question of fact whether such belief exists or not.
xx xx xx By the expression 'colour of legal right' is meant not a false pretence but a fair pretence, not a complete absence of claim but a bona fide claim, however weak."
Mr. M. R. Mohanty, the learned Additional Standing Counsel, relied on AIR 1957 SC. 369 (K. N. Mehra v. State of Rajasthan) and AIR 1963 S C. 1094 (Pyare Lal Bhargava v. The State of Rajasthan) to dislodge a claim of bona fide rights in the petitioners. The citations are inapplicable to the present case. AIR 1957 S C. 369 relates to the theft of an aircraft by a discharged cadet and another cadet receiving training as a Navigator whose duty was only to guide a pilot with the help of instruments and maps. Admittedly the discharged cadet had no authority to fly and so far as the other cadet receiving training as a Navigator is concerned, he had no authority to take out a Harvaid H. T. 822 aircraft which they did. The aircraft was taken by those two cadets and they landed at a place in Pakisthan about 100 miles away from the indo-Pakisthan border whereafter the two cadets contacted the Military Advisors to the Indian High Corrmissioner in Pakislhan at Karachi and informed him that they had lost their way and force-landed in a field, and that they had left the plane there. It was held that the gain or loss rontemplated Under Section 378, Indian Penal Code, need not be a total acquisition or a total deprivation but it is enough if it is a temporary retention of property by the person wrongfully gaining or a temporary Keeping out ‘of property from the person legally entitled. The case was thus one where there could not be a bona fide claim of right which could be out forward by the cadets Similarly, so far as AIR 1363 S. C. 1094 is concerned, it was a case where a Superintendent in a Government Office took certain file of the Office to his house and made the same available to another person and returned the same to Office after replacing certain papers by other papers. It was decided that the Superintendent was not in legal possession of the file and the removal of the file from the department was unlawful, and even for a short while the Head of the department was deprived of the possession of the said file. In the circumstances it was held that the Superintendent was guilty of theft Here also there could not be any question of a hour fide claim of right in the Superintendent to remove the files from the Government Office, taking it home and making it available to some other person and also replacing files in some other papers. The petitions are also entitled to be allowed on the second point urged by Mr. Misra,
9. However, it was urged by Mr. Mohanty, Additional Standing Counsel that the revisional jurisdiction of this Court would not extend to interfere with the findings of fact reached concurrently by both the Courts below that the petitioners are guilty of the offence of theft. It is true that ordinarily the High Court is not to interfere in revision with findings of fact recorded by the lower Courts. However, where it is clear that the very approach of the lower Courts will lead to miscarriage of justice or generally the Courts below have failed to discuss important evidence or where such finding is arrived at contrary to well-established or basic principles of law, the non-interference by the High Court in its revisional jurisdiction will not be in the aid. of justice but would be arresting it. If the judgment is grossly improper or the findings of fact reached are demonstrably wrong or it is a case of either inadmissible evidence or no evidence, the High Court indeed would be falling in its duty if such improper exercise of jurisdiction is not remedied. The High Court has ample powers in its inherent jurisdiction to interfere with findings of fact which cannot be” reached by any reasonable man on the evidence produced or the evidence has been misread and betrays a clear non-application of mind It is of course of paramount importance that the power to interfere with the findings of fact must be very sparingly resorted to and only where it is clear that due to the infirmitfes of the Courts below, manifest injustice has occurred. [(See ‘1968(34) CLT 99 (Prakash Chandra Mohanty v. State) and 1971(37) CLT 1164(Pitei Bewa and 6 others v. State)].
10. On application of the aforesaid principles, I am of the view that the judgments of both the Courts below suffered from infirmities of a wrong approach and hence the findings reached by them are liable to be interfered with at the revisional stage. Both the Courts did not at all consider the question of delay in lodging of the F. I. R. and the question of bona fide claim of right by the petitioners was not given attention at all.
11. In the result, the petitions succeed and the judgment dated 21-12-1981 of the Subdivisional Judicial Magistrate, Titilagarh, in G.R. Case No. 121 of 1976 and the judgment dated 26-4-1982 of the Sessions Judge, Bolangir, In Crimtnal Appeal Nos. 89-B of 1981 and 90-B of 1981 are set aside and the convictton of the petitioners are quashed. The fine, if any, realised from the petitioners, be refunded to them.