SAMSUL HAQUE GAZI v. STATE — 1997 DIGILAW 275 (CAL)

DIBYENDU BHUSAN DUTTA, J. ( 1 ) IN the instant application under Sections 482, Cr. P. C. the accused of Domjur Police Station Case No. 188 dated 30-10-1989 under Sections 39 of the Indian Electricity Act has prayed for quashing of the said prosecution. ( 2 ) THE said case was registered on the strength of an FIR lodged by Assistant Engineer, Domjur Group Electric Supply, West Bengal State Electricity Board, District Howrah. According to the FIR, on 30-10-1991 at about 15-45 hrs the informant along with some other officials of the Domjur Group Electric Supply and also some local police officers (Vide Domjur P. S. G. D. Entry No. 1236 dated 30-10-1991) held inspection at the house of the petitioner and found the petitioner in the act of abstracting consuming/using electric dishonestly from the Ankur Hati line situated at Ankur Hati in his said house/shop by way of direct hooking/tapping/diverting/pilfering and thereby caused loss of revenue to the tune of Rs. 150/- per month. The FIR further discloses the fact in committing such dishonest abstraction/consumption/use of electric energy the petitioner used a single core PVC wire with hooks six mts. approx and one set of tube light set (Comp) with tube as the electrical hooking devices/accessories/attachments. The said electrical devices and accessories were seized by the police. At about 18-15 hrs. the informant went to Domjur Police Station and lodged the FIR on the basis of which the aforesaid police case was instituted. ( 3 ) THE petitioner came up with the instant revisional application on 13-11-1991 challenging the legality of the prosecution only on ground of non-compliance with the requirements of Sections 50 of the Indian Electricity Act as amended upto date. ( 4 ) SECTIONS 50 reads thus :"institution of prosecutions.- No prosecution shall be instituted against any person for any offence against this Act or any rule, licence or order thereunder, except at the instance of the Government or a State Electricity Board or an electrical inspector, or of a person aggrieved by the same". ( 5 ) MR. ( 4 ) SECTIONS 50 reads thus :"institution of prosecutions.- No prosecution shall be instituted against any person for any offence against this Act or any rule, licence or order thereunder, except at the instance of the Government or a State Electricity Board or an electrical inspector, or of a person aggrieved by the same". ( 5 ) MR. Ahindra Adhya, the learned counsel for the accused petitioner, contended that the informant was not an electrical inspector nor the Government or the State Electricity Board nor a person within the meaning of Sections 50 of the Indian Electricity Act and as such, the prosecution cannot be said to have been instituted at the instance of the authorities or persons mentioned in Sections 50 of the Act. Consequently, the initiation of the prosecution in the instant case was bad and its continuation would be abuse of the process of the Court and such, the impugned prosecution should be quashed. ( 6 ) MR. Adhya placed his reliance on AIR 1968 Patna 131 : (1968 Cri LJ 537), Rama Shanker Sinha v. The State and 1985 Cri LJ 1133, Laxmanlal v. State of M. P. ( 7 ) MR. Sudipto Moitro, the learned Additional Public Prosecutor appearing with Mrs. Krishna Ghosh for the State, on the other hand, contended that the informant was a responsible officer of the State Electricity Board having special qualification for detention of an offence of theft of energy as contemplated under Sections 39 of the Act and as such, the prosecution must be deemed to have been instituted at the instance of the State Electricity Board. Alternatively, Mr. Moitra contended that the informant was a person aggrieved by the offence concerned within the meaning of Sections 50 of the Act, and as such, no exception can be taken to the prosecution being instituted him. Further more, Mr. Moitro contended that the question whether the prosecution was instituted at the instance of the State Electricity Board or whether the informant was a person aggrieved by the concerned offence can be decided on the basis of the evidence to be collected during the investigation or to be adduced by the prosecution during the trial and that this is not all the proper stage for agitating this question. ( 8 ) RELIANCE was placed by Mr. ( 8 ) RELIANCE was placed by Mr. Moitra in 38 Cri LJ 53 Vishwanath v. Emperor, AIR 1965 SC 666 : (1995 Cri LJ 605), Avtar Singh v. State of Punjab, AIR 1969 Mad 280 : (1969 Cri LJ 918 ). The Public Prosecutor v. Abdul Wahab, 1976 Cri LJ 942, Hardwar Singh v. The State of Bihar, 1981 Cri LJ 1230, Jhalkan Singh v. State of M. P. , 1984 Cri LJ 1161, Ram Subhawan v. State of U. P. and 1992 Cri LJ 3745, Rampalsingh v. The State of M. P. ( 9 ) THUS, the points that would arise for my determination here would be whether the impugned prosecution can be said to have been instituted at the instance of the State Electricity Board or of a person aggrieved by the offence and whether the impugned prosecution is liable to be quashed at this stage. ( 10 ) ON an analysis of all the decisions that were cited by Mr. Adhya and Mr. Moitra, we find that the earliest case is that of Vishwanath v. Emperor decided by a Division Bench of the Allahabad High Court and reported in 38 Cri LJ 53 corresponding to AIR 1936 All 742. This decision interpreted the meaning of the phrase "at the instance of" as "at the solicitation of or at the request of". According to this decision, in enacting Sections 50 of the Indian Electricity Act requiring the prosecution for any offence under the Act to be instituted at the instance of some of the authorities specifically mentioned therein or at the instance of a person aggrieved by the offence, the legislature only meant that a prosecution should not be instituted by some independent busy body who had nothing to do with the matter. It was observed in this decision that if it had been the intention of the legislature that no case should be instituted in Court except by the persons mentioned in Sections 50 of the Act, the legislature would have used the ordinary phrase "on the complaint of" and the Sections would have been on the lines that no Magistrate should take cognizance of any offence referred to in Sections 50 of the Act except upon the complaint of certain persons. In this case, an Electric Company was the person aggrieved. In this case, an Electric Company was the person aggrieved. The officers of the company discovered the theft of electricity and they reported it to the police and asked the police to make the investigation. The company intended that a prosecution should follow intended that a prosecution should follow according to the result of investigation. They made further reports to assist the police and their officers came into Court and gave evidence and it was held that the prosecution was really at the instance of the Electric Company although they may not have made any compliant on which the Magistrate took cognizance of the offence. ( 11 ) THIS decision of the Allahabad High Court (Viswanath v. Emperor) was relied upon by a three Judge Bench of the Supreme Court in the case of Avtar Singh v. State of Punjab reported in AIR 1965 SC 666 : (1965 (1) Cri LJ 605 ). According to this decision of the Supreme Court, the object of Sections 50 is to prevent prosecution for offences against the Act being instituted by anyone who choose to do so because the offences can be proved by men possessing special qualification and that is why it is left only to the authorities concerned with the offence and the persons aggrieved by it to initiate the prosecution. It was further held by the Supreme Court in this case that the onus of proving the fact that prosecution has been instituted at the instance of one of persons mentioned in Sections 50 of the Act is on the prosecution. ( 12 ) IN AIR 1968 Patna 131 : (1968 Cri LJ 537) Rama Shanker Sinha v. The State, the prosecution was started by the Secretary of a licensee Company and it ended in a conviction under Sections 379 of the Indian Penal Code read with Sections 39 of Indian Electricity Act, as it then stood. On the facts alleged in the case, the Patna High Court found that the company was an aggrieved person which could act only through some person. But there was no evidence to show that the Secretary was such person. There was no evidence to show what functions the Secretary had to perform and what his duties and powers were. On the facts alleged in the case, the Patna High Court found that the company was an aggrieved person which could act only through some person. But there was no evidence to show that the Secretary was such person. There was no evidence to show what functions the Secretary had to perform and what his duties and powers were. The Patna High Court took the view that the Secretary had not proved that he had the power or authority to initiate the prosecution or that he was the aggrieved person and in such view of the matter, it held that the prosecution started by the Secretary of the Company was not maintainable. ( 13 ) BOTH Vishwanath's case (supra) and Avtar Singh's case (supra) were RELIED ON in AIR 1969 Madras 280 : (1969 Cri LJ 18) (The Public Prosecutor v. Abdul Wahab ). Here, the prosecution under Sections 39 of the Electricity Act was instituted by a responsible officer namely the Chief Engineer of the Licensee Electric Supply Corporation who was appointed as the general power of attorney agent by the Managing Agent of the Corporation under the powers given to them by the Articles of Association of the Corporation. The Madras High Court observed that the phrase "at the instance of" should be given wider meaning to exclude persons who had nothing to do with the company from giving a complaint and that a complaint by responsible officers of the company even though there is no specific authorisation would be "at the instance" of the company. It was held that when an attorney, manager or officer is appointed by the Managing Agent, his services are for and on behalf of the company and absence of any complaint by the corporation or any resolution authorising the Chief Engineer to file a complaint will not invalidate the prosecution, and that the prosecution was at the instance of the aggrieved person within the meaning of Sections 50 of the Act. Alternatively, the Court held that assuming that the Chief Engineer was not the person aggrieved within the meaning of Sections 50 of the Act, he was acting at the instance of the Electric Supply Corporation. ( 14 ) AVTAR Singh's case (supra) was also relied upon in the subsequent decision of the Patna High Court reported in 1976 Cri LJ 942 Hardwar Singh v. State of Bihar. ( 14 ) AVTAR Singh's case (supra) was also relied upon in the subsequent decision of the Patna High Court reported in 1976 Cri LJ 942 Hardwar Singh v. State of Bihar. The prosecution, here was instituted on the basis of a charge-sheet filed by the police under Sections 39 of the Act following the police investigation of a complaint lodged by Assistant Engineering of an Electricity Supply Sub Division and the Magistrate took cognizance of the offence under Sections 39 on the basis of that charge sheet. The order taking cognizance was assailed on behalf of the accused. The offence being a cognizable offence, and the police having acted on the information of the Assistant Engineer and the police investigation having culminated in the submission of the charge sheet, the Patna High Court held that the prosecution had been instituted at the instance of a person who claimed to be the person aggrieved within the meaning of Sections 50. In dismissing the revisional application, the Patna High Court observed that the question whether the concerned engineer was the person aggrieved as contemplated under the Sections was a matter to be investigated at the appropriate stage and no pronouncement in this behalf need be made in the revisional application. ( 15 ) AVTAR Singh's case (supra) was also relied upon in 1981 Cri LJ 1230 Jhalkan Singh v. The State of M. P. Here the officer-in-charge of an Electricity circle initiated the complaint for offence under Sections 39 on the strength of which the State prosecuted the accused and the Madhya Pradesh High Court held that the prosecution must be deemed to have been properly instituted at the instance of the person aggrieved and that there was no illegality in the conviction on that ground. Incidentally, it may be stated that in Jalkhan Singh's case, the M. P. High Court also RELIED ON a Supreme Court decision in the case of Ramachandra v. State of Bihar reported in AIR 1967 SC 349 : (1967 Cri LJ 409 ). In that case, the person aggrieved was the Patna Electric Supply Company which was a body corporate and must act only through its directors. There was evidence to the effect that one Ramaswamy held the general power of attorney from the Company and he was specifically empowered to act on behalf of the company in all legal proceedings. In that case, the person aggrieved was the Patna Electric Supply Company which was a body corporate and must act only through its directors. There was evidence to the effect that one Ramaswamy held the general power of attorney from the Company and he was specifically empowered to act on behalf of the company in all legal proceedings. The evidence further showed that it was at the instance of Ramaswamy that one Bhattacharyya launched the FIR regarding the commission of an offence under Sections 39 of the Act. The police investigated the case and submitted the charge sheet on the basis of which the prosecution commenced. It was held that the law was set in motion by the person aggrieved. ( 16 ) AVTAR Singh's case (supra) was RELIED ON in the case of Ram Subhawan v. State of U. P. reported in 1984 Cri LJ 1161. The FIR in that case was lodged by an official who was duty bound to make checking of consumption of electricity and it was he who detected the commission of offence in course of such checking. The Lucknow Bench of the Allahabad High Court held that the said official being interested to bring to book cases of theft of electricity could be treated as aggrieved person competent to launch the prosecution within the meaning of Sections 50 of the Indian Electricity Act. ( 17 ) IN 1985 Cri LJ 1133 Laxmanlal v. State of M. P. , the Gwalior Bench of the M. P. High Court appears to have taken a view which is contrary to the view taken by the M. P. High Court in Jalkhan Singh's case (supra ). Here the prosecution was launched by an Assistant Engineer of M. P. Electricity Board without power of attorney to act in legal proceeding on behalf of the Board and there was no other material indicating that he was empowered to do so on behalf of the Board and the Gwalior Bench of the M. P. High Court held that the prosecution was not maintainable. In taking such a contrary view, this Bench tried to distinguish the Supreme Court case reported in 1967 Cri LJ 409 : ( AIR 1967 SC 349 ) Ram Chandra Prasad Sharma v. State of Bihar (on which the earlier decision of the M. P. High Court in Jalkhan Singh's case (supra) was based) on the ground that in the Supreme Court case, the prosecution had been launched of the instance of an officer who held a general power of attorney for the P. E. S. Company, and had been specifically empowered thereunder to act on behalf of the company in all legal proceedings, while in the Laxman Lal's case (supra) there was nothing in the papers RELIED ON by the prosecution to indicate that the Assistant Engineer who lodged the report with the police held any such power of attorney or authority launch the prosecution of behalf of the Board. ( 18 ) IN a later decision of the M. P. High Court reported in 1992 Cri LJ 3745 Rampalsingh v. The State of M. P. the Court RELIED ON Avtar Singh's case (supra) and also the earlier decision of that High Court reported in 1981 Cri LJ 1230 (Jalkhan Singh v. State of M. P.) and found that the Junior Engineer who was in charge of distribution centre was a person concerned with the offence and possesed the special qualification needed for the purpose and on such finding it held that the Junior Engineer being an officer of the Board, duly qualified and possessing the requisite technical knowledge, would be evidently in a position to launch a prosecution under Sections 50 as the Board would be certainly aggrieved when the electricity generated is pilferred and is not paid for. In such view of the matter, the Junior Engineer was held to be a person who was immediately and highly aggrieved by the offence. ( 19 ) IN our case, the informant was as Assistant Engineer of the West Bengal Electricity Board. He detected the offence in course of his inspection. Prima facie this fact leads to an inference that checking of theft of electricity was a part of his duty and he was interested to bring to book cases of theft of electrical energy. The FIR discloses the fact that the place of occurrence falls within the his jurisdiction. He detected the offence in course of his inspection. Prima facie this fact leads to an inference that checking of theft of electricity was a part of his duty and he was interested to bring to book cases of theft of electrical energy. The FIR discloses the fact that the place of occurrence falls within the his jurisdiction. It sufficiently indicates that he possesses the test of special qualifications as laid down in Avtar Singh's case (supra ). It also indicates prima facie that checking of theft of electricity was a part of his duty. The FIR further discloses that being a responsible officer of the Board, he was certainly interested to bring to book the cases of theft of electrical energy. There is no material on record to indicate that the FIR was lodged by him on his own and not at the instance of West Bengal State Electricity Board. The case is at the stage of investigation. It is true that the onus of proving the fact that the prosecution has been instituted at the instance of the State Electricity Board is on the prosecution lent the stage for discharging this onus has not yet arrived. ( 20 ) GOING by the Supreme Court decisions in the cases of Vishwanath v. Emperor (supra), Avtar Singh v. State of Punjab (supra) and Ramachandra Prasad Sharma (supra) and the other decisions of the Patna, Allahabad, M. P. and Madras High courts cited by Mr. Moitra in the light of what is revealed by the FIR, I must say that the FIR in the instant case does prima facie indicate that the prosecution is at the instance of the State Electricity Board or at least at the instance of a person aggrieved within the meaning of Sections 50 of the Act. ( 21 ) THERE is thus no reason to quash the instant prosecution at this stage and to hold that continuance of such a prosecution would amount to abuse of the process of the Court. In such view of the matter, I am to hold that the impugned prosecution is not a liable to be quashed at this stage. In the result, the application fails and is hereby dismissed. The ad interim stay that was granted by order dated 13-11-1991 is hereby vacated. The investigation should proceed in accordance with law. Let the learned Magistrate and police be informed accordingly. In the result, the application fails and is hereby dismissed. The ad interim stay that was granted by order dated 13-11-1991 is hereby vacated. The investigation should proceed in accordance with law. Let the learned Magistrate and police be informed accordingly. Petition dismissed.