P. S. SUNDRAM v. S. VARSHASWAMI — 1982 DIGILAW 17 (DEL)

Charaojit Talwar, J. ( 1 ) A complaint under sections 426, 430 of the Indian Penal Code and under section 45 and 48 (4) of the Delhi Rent Control Act 1918, was filed on 24th August 1974, in the court of a Magistrate, by S. Varahaswami against his landlord, P. S. Sundram, petitioner herein, on the allegation that the accused had cut off the supply of electricity and water in the tenanted premises on 5th June 1974. ( 2 ) AFTER recording preliminary evidence under Section 202 of the Code of Criminal Procedure, of the complainant, who appeared aspw 1, and three other witnesses on his behalf, the learned Magistrate vide his order dated 15th March, 1975, summoned the accused, petitioner herein, for an offence under section 426, Indian Penal Code only. It was noticed in that order that the complainant did not press for the summoning of the accused under section 430, Indian Penal Code and section 45 of the Delhi Rent Control Act. ( 3 ) THE case of the complainant is that he was a tenant under the petitioner herein in the first floor of house No. C-25, South Extension Part I, New Delhi, since September, 1969, on a monthly rent of Rs. 240. 00. The ground floor ot that house was in the occupation of the landlord, that the landlord was bent upon in having the tenanted premised vacated, for that purpose he had not only filed eviction petitions against the complaint but had also been indulging in unlawful acts of harassing, humiliating and coercing the complainant in vacating the premises in question. The complaint was. primarily based on the allegations contained in paras 5 to 12 of the complaint which paras read as under:- " (5) That as part of such unlawful acts, the accused with the connivance and support of his son, has off and on been with holding/ cutting off/diminishing essential supplies of electricity and water. With a view to enabling him to commit the mischief and evade detection thereof, the accused had got removed the electricity distribution board of first floor which was hitherto in the first floor staircase itself and got it installed under the staircase in ground floor on the wall of toilet of back portion. He has taken lead from behind the distribution board into his toilet and has installed control switches for electricity (light and fan ). He has taken lead from behind the distribution board into his toilet and has installed control switches for electricity (light and fan ). For water, he has got installed in that toilet a stopcock by use of which he has been diminishing water supply and had also cut if off since 5th June, 1974. He had meddled with the power supply and had locked up the meter box situated under the staircase of ground floor, (6) That from 5th June, 1974, the accused had totally cut off electricity (light and fan), domestic power and water to the tenanted premises, (7) that on 6th June, 1974, the complainant filed a petition in the Court of the Rent Controller for restoration of essential supplies u/s 45 of Delhi Rent Control Act 1958, (8) that on 7th June, 1974, on an application moved by the complainant the hon ble Court of Shri V. S. Aggarwal, Additional Rent Controller, Delhi, was pleased to appoint a local commissioner, Shrivijay Kumarbehl, Advocate, to inspect the tenanted premises to find out whether electricity and water was cut off to the tenanted premises and if so to find out from where it was cut off, (9) that the local commissioner visited the premises in the evening of the same day and found that electricity (light and fan) was cut off to the bedroom, kitchen and verandah and domestic power and water were cut off for the entire premises, which fact was also shown to the accused, (10) that the local commissioner contacted the accused, showed the order of the court and asked him to allow access to find out from where the essential supplies were being with-held. The accused at first refused on the plea that he should have been given at least 24 hours notice according to Delhi Rent Control Act but later hesitatingly allowed the local commissioner access to ground floor, 140 (11) that after inspecting the kitchen and one toilet of ground floor, the local commissioner wanted to inspect the other toilet where the devices for withholding/cutting off/diminishing essential supplies were illegally installed but he was prevented by the accused from inspecting that toilet, (12) that the order of the honourable Court of Shri V. S. Aggarwal directing the accused to restore the essential supplies of water and electricity was duly served on the accused on 8th June, 1974. But in spite of this, the accused has contumaciously been withholding electricity (light and fan) to bedroom, kitchen and verandah and power to the whole premises. He restored electricity to bedroom and power to the whole tenanted premises only on 1st July, 1974. He has not so far restored electricity to kitchen and verandah. In spite of the order, he has been diminfshing water supply by 50 per cent and had completely cut it off on 16th, 17th, 18th, 20th 21st June, 1974. He has not so far restored water supply for latrine by using a stopcock in the connection from second floor bank. The accused has been/is committing these unlawful acts in connivance with and active support of his son". ( 4 ) FROM the above quoted allegations in the complaint and the preliminary evidence recorded prima fade it appears that from the distribution board through which electricity was supplied to the first floor of the premises, the landlord, petitioner herein, has illegally got a connection installed by taking a lead from it to a bath-room on the ground-floor in his exclusive possession where he had put a control switch whereby he could cut off the supply of the electricity to the first floor any time he liked. For withholding of or diminishing the water supply the landlord had installed in that toilet a stopcock by operation of whjch he could diminish or control the water supply to the tenanted premises. ( 5 ) PARA 8 of the complaint shows that a local commissioner, Shri Vijay Kumar Behl, Advocate, was appointed by the Court of the Rent Controller to verify the allegations made before that Court. According to his report he found the allegations to be correct. Therefore, the Rent Controller had directed the restoration of the electric and water connections. The offence regarding withholding or cutting of the supply of water falls within the purview of section 430 of the Indian Penal Code. The complainant not having pressed that allegation at the time of arguments, the accused was not summoned for that offence. In pursuance of the summons, the accused appeared before the Court on 2nd January, 1976, and was admitted to bail. For one reason or the other, there has been no progress in the case since then, except for issuance of a notice under section 251 of the Code of Criminal Procedure. In pursuance of the summons, the accused appeared before the Court on 2nd January, 1976, and was admitted to bail. For one reason or the other, there has been no progress in the case since then, except for issuance of a notice under section 251 of the Code of Criminal Procedure. However, the petitioner berein moved an application on 8th May, 1979, seeking dismissal of the complaint against him as it was not maintainable. The ground taken by the petitioner was that as the application moved by the complainant before the Rent Controller under the Rent Control Act, had been dismissed vide order passed on 8th May, 1975, which order had been affirmed by the Rent Control Tribunal as well as by the High Court in a second appeal, the present complain based on those very allegations, deserved dismissal. In para 5 of the application, it had been averred that in any case no offence was committed by the accused-petitioner. ( 6 ) WHILE dismissing that application the trial Court has held that the cause of action of the complaint was different from the one which was the subject- matter of the application before the Rent Controller. In that application the grievance was that the supply of electricity had been disconnected from 31st December, 1974, whereas in the present complaint the allegation was that it had been cut off from 5th June, 1974. The plea of the accused that no offence had been made out has been noticed in that order but the Magistrate has not dealt with the same. Thereafter, the petitioner herein filed a revision petition against that order of the Magistrate. The learned Additional Sessions Judge was of the view that dismissal of the application filed by the complainant in the Court of the Rent Controller did not bar the filing of the present complaint. It was further held that application seeking dismissal of the complaint was misconceived as it bad been filed after about four years of the order of summoning, that order not having been challenged the accused could not by means of an interlocutory application seek dismissal of the complaint on merits. The learned Additional Sessions Judge also has not discussed whether in fact the complaint and the preliminary evidence disclosed any offence under section 426 of the Indian Penal Code. The learned Additional Sessions Judge also has not discussed whether in fact the complaint and the preliminary evidence disclosed any offence under section 426 of the Indian Penal Code. Most probably, this plea taken in the grounds of revision was not urged before her and that is why there is no discussion on it. ( 7 ) IN this petition under section 432 of the Code of Criminal Procedure it is submitted that assuming without admitting that all the facts pleaded in the complaint to be correct, no offence is made out under section 426 of the Indian Penal Code. The proceedings pending in the trial Court, it is urged, are thus liable to be quashed. The complainant in support of the allegations urged in the complaint, relied on the report of the local commissioner which was filed in the Court of the Rent Controller. A copy of that report was filed by the petitioner herein along with the application seeking discharge in the trial Court. ( 8 ) THE contention of Mr. D. C. Mathur, learned counsel for the petitioner, is that the mere disconnection of electric supply docs not amount to destruction of property as envisaged under section 425 of the Indian Penal Code which reads as follows : "425. Mischief.-Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief". Explanation 1.-It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongfulloss or damage to any person by injuring any property, whether it belongs to that person or not. Explanation 2.-Mischief may be committed by an act affecting property belonging to the person who commits the act, or that person and others jointly. ( 9 ) IN support of his contention Mr. Mathur submits that electricity is energy and as such cannot be termed as movable property . He is right to that extent. Explanation 2.-Mischief may be committed by an act affecting property belonging to the person who commits the act, or that person and others jointly. ( 9 ) IN support of his contention Mr. Mathur submits that electricity is energy and as such cannot be termed as movable property . He is right to that extent. But his contentian that by switching off the supply of that energy, which is not property, the act of complained of does not amount to mischief as envisaged under Section 425 of the Indian Penal Code is entirely misconceived. His reliance on I. H. Khan v. V. M. Arathoon and another, 1969 Cri. L. J. 242, is also misplaced. That case is distinguishable on its own facts. In that case the landlord after revoking the licence of the complainant who was a licencee in respect of a garage, had stopped the supply of electricity to that garage by switching off the current. It was observed by T. P. Mukherji, J. "this stoppage of supply of electric current, in the circumstances of this case, would not, in my view, amount to mischief at contemplated in Section 425, I. P. C. " Apparently, after revocation of the licence, the complainant was not entitled to receive the electric current and the landlord had no duty cast upon him to supply it. ( 10 ) THE grievance in the present case amounts to the allegation that by switehing off the electric current there has been a destruction of the property in occupation of the complainant in as much as that act brings about such a change in the premises in occupation of the complainant which diminishes its utility or value. Obviously, if electricity is switched off, as is being complained in this case, it diminishes the value and the utility of the tenanted prernises as envisaged by Section 425 of the Indian Penal Code. In my view, it is not necessary to prove that in fact the accused had caused any damage to the distribution board or that vires supplying electric current from that board to the tenant premises had been cut or destroyed property contemplated in Section 425 of the Indian Penal Code is the property whose value or utility has been diminished or it has been destroyed. ( 11 ) IN view of my above discussion, this petition fails and is hereby dismissed. ( 11 ) IN view of my above discussion, this petition fails and is hereby dismissed. Any observation made by me in the above order will not be construed to be findings of the fact. These observations have been made merely to assess the legal propositions canvassed on behalf of the petitioner.