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2000 DIGILAW 526 (DEL)

A. K. MOHINDRU v. STATE OF DELHI

2000-07-07

R.S.SODHI

body2000
R. S. Sodhi ( 1 ) BY this petition under Section 482 of the Code of Criminal Procedure (for short cr. P. C. ) the petitioner seeks to quash FIR No. 186 of 1995, Police Station Vasant Kunj, New Delhi, under Section 39/44 of the Indian Electricity Act (for short the Act ) road with Section 379 of the Indian Penal Code (for short indian Penal Code ) and the proceedings pursuant thereto entitled state v. A. K. Mohindru pending in the Court of Metropolitan Magistrate, Vidyut Adalat, Shakti Sadan, New Delhi. ( 2 ) THE case of the petitioner is that he is the owner of the premises situated at Khasra No. 10/2, Village Samalkha, Delhi-110 037 which premises was let out by him to one M/s. ABC Nakufreight Limited (hereinafter referred to as the tenants ), at a monthly rent of Rs. 26,700. 00. The electricity charges were to be paid as per consumption. After the execution of the lease deed, possession of the premises was handed over to the tenant who also installed a generator since the electric supply was erratic. Learned Counsel for the petitioner submitted that right from the inception of the tenancy, the tenants were in possession and full control of the entire premises. Even security guards were posted and the petitioner had to go through the said security to enter the premises, ( 3 ) OH 10th May, 1995, the aforesaid premises (Khasra No. 10/2, Village Samalkha, Delhi) were raided by the officials of DESU (now DVB) alongwith the police officials from Police Station Vasant Kunj, New Delhi. On the aforesaid premises, it is alleged, that the raiding party detected abstraction of electricity by illegal means. FIR No. 186/99 was registered on 12th May, 1995. Because the petitioner had nothing to do with the use of the electricity in the said premises except being the owner of the premises, his name did not figure as a consumer either at the time of raid or subsequently at the time of registration of the FIR. During investigation it was revealed that the registered consumer of the electricity in the premises in question was one Mr. Kartar Singh and the actual consumer was the tenant (M/s. ABC Nakufreight Limited ). During investigation it was revealed that the registered consumer of the electricity in the premises in question was one Mr. Kartar Singh and the actual consumer was the tenant (M/s. ABC Nakufreight Limited ). It was in these circumstances that the Investigating Officer, vide letter dated 22nd December, 1995, requested the DESU to grant permission under Section 50 of the Indian Electricity Act for prosecution in regard to theft of electricity committed at the premises. ( 4 ) IT is contended that without getting the requisite sanction under Section 50 of the Act, challan was filed in the Court of the Metropolitan Magistrate, Delhi, on 6th September, 1995. In the challan the petitioner has been shown as an accused. It is the case of the petitioner that the challan, on the face of it, does not disclose any material against the petitioner and as per the allegations made there, supported by the site plan prepared by the Investigating Officer at the spot, the possession of the premises in question is shown to be with the tenant. However, the petitioner continued to be shown as an accused. ( 5 ) AFTER filing of the challan, the petitioner appeared in the Court of the Metropolitan Magistrate, Vasant Kunj, and filed an application under Section 245 (2), Cr. P. C. wherein he prayed that the summoning order be recalled since the allegations do not show any cognizable offence having been committed by the petitioner. This application was rejected by order dated 21st April, 1997, holding, prima facie, that a case under Section 397 of the Act is made out. Thereafter, the Metropolitan Magistrate framed charge against the petitioner vide order dated 21st April, 1997 as follows; "i, Pradeep Chaddah, M. M. , N. Delhi do hereby charge you, A. K. Mahendru as under: That on 10. 5. 1996 at your farm house in village Samalkha within jurisdiction of P. S. Vasant Kanj you were found dishonestly abstracting, consuming and stealing electricity by by-passing the DESU meter and you thus thereby committed offence punishable under Section 39 of the Indian Electricity Act within my cognizance. And I hereby direct that you be tried by this Court on the above charge. " ( 6 ) BEING aggrieved by the other dated 21st April, 1997, framing charges, the petitioner challenged the same by way of a revision petition before the Court of Sessions, New Delhi. And I hereby direct that you be tried by this Court on the above charge. " ( 6 ) BEING aggrieved by the other dated 21st April, 1997, framing charges, the petitioner challenged the same by way of a revision petition before the Court of Sessions, New Delhi. The learned Additional Sessions Judge vide order dated 5th May, 1999 upheld that the order of the learned Metropolitan Magistrate and dismissed the revision petition. Aggrieved thereof, the petitioner has approached this Court by way of the present petition. ( 7 ) I have heard learned Counsel for the petitioner and gone through the record of the case. Section 39 of-the Indian Electricity Act so far as material provides - "whoever dishonestly abstracts, consumes or uses any electricity shall be deemed to have committed theft within the meaning of the Indian Penal Code". It is not in dispute that theft if at all had been committed by the tenant he is covered by Section 39 of the Act. Section 50 of the Act provides : "no prosecution shall be instituted against any person for any offence against the Act. . . . . except at the instance of the Government or Electricity Inspector or of any person aggrieved by the same". The contention of the petitioner is that his prosecution under the Act was for an offence against the Act and it was incompetent as it had not been established that it had been instituted at the instance of any of the persons mentioned in Section 50 of the Act. There is no material on record to show that the prosecution has been instituted by a person mentioned in Section 50 of the Act. The question whether theft of electricity is an offence against the Act or not has been dealt with by the Supreme Court in Avtar Singh v. State of Punjab, AIR 1965 SC 666 . The Supreme Court held as under: "to put it shortly, dishonest abstraction of electricity mentioned in Section 39 cannot be an offence under the Code for under it alone it is not an offence; the dishonest abstraction is by Section 39 made a theft within the meaning of the Code, that is, an offence of the variety described in the Code as theft. As the offence is created by raising a fiction, the section which raises the fiction, namely Section 39 of the Act, must be said to create the offence. Since the abstraction is by Section 39 to be deemed to be an offence under the Code, the fiction must be followed to the end and the offence so created would entail the punishment mentioned in the Code for that offence. The punishment is not under the Code itself for under it abstraction of energy is not an offence at all. We may now refer to certain general considerations also leading to the view which we have taken. First, we find that the heading which governs Sections 39 to 50 of the Act is "criminal Offences and Procedure". Obviously, therefore, the legislature thought that Section 39 created an offence. We have also said that Sections 48 and 6 9 indicate that in the legislature s contemplation Section 39 provided for a punishment. That section must, therefore, also have been intended to create an offence to which the punishment was to attach. The word offence is not defined in the Act. Since for the reasons, earlier mentioned, in the legislature s view Section 39 created an offence, it has to be held that that was one of the offences to which Section 50 was intended to apply. Lastly, it. seems to us that the object of Section 50 is to prevent prosecution for offences against the Act being instituted by anyone who chooses to do so because the offences can be proved by men possessing special qualifications. That is why it is left only to the Authorities concerned with the offence and the persons aggrieved by it to initiate the prosecution. There is no dispute that Section 50 would apply to the offences mentionedin Sections 40 to 47. Now it seems to us that if we are right in our view about the object of Section 50, in principle it would be impossible to make any distinction between Section 39 and any of the sections from Section 40 to Section 47. Thus Section 40 makes it an offence to maliciously cause energy to be wasted. If in respect of waste of energy Section 50 is to have application there is no reason why it should not have been intended to apply to dishonest abstraction of energy made a theft by Section 39. Thus Section 40 makes it an offence to maliciously cause energy to be wasted. If in respect of waste of energy Section 50 is to have application there is no reason why it should not have been intended to apply to dishonest abstraction of energy made a theft by Section 39. For all these reasons we think that the present is a case of an offence against the Act and the prosecution in respect of that offence would be incompetent unless it was instituted at the instance of a person named in Section 50. " In the instant case there is no material on record to show that any sanction under Section 50 of the Act had been obtained. ( 8 ) COMING to the question whether the petitioner could be arrayed as an accused, it would be interesting to note that in Ramachandra v. State of Bihar, AIR 1967 SC 349 , it was held that before raising a presumption under Section 39 of the Act that there was dishonest abstraction, the presence of an artificial means, which would render abstraction of energy possible has to be established. Needless to add here that mens rea is an essential element in an offence punishable under Section 39/44 of the Act read with Section 379, Indian Penal Code. The test of mens rea here is subjective. In Section 39 of the Act, the emphasis is on the word whoever and the word whoever is of wide amplitude and it embraces within its fold any person including the registered consumer, who has the custody and control over the offending meter used for supply of electrical energy. It follows that Section 39 of the Act creates an offence against a person who has been shown to have dishonestly abstracted, consumed or used the electrical energy. ( 9 ) IT has to be borne in mind that under the Act, certain civil and criminal liability is imposed upon a consumer as defined in Section 2 (c) of the Act. The civil liability is the liability to pay charges for the electrical energy consumed. Sub-section (3) of Section 23 of the Act entitles the licensee to charge the energy supplied by him to any consumer. This is the civil liability imposed upon a consumer. The civil liability is the liability to pay charges for the electrical energy consumed. Sub-section (3) of Section 23 of the Act entitles the licensee to charge the energy supplied by him to any consumer. This is the civil liability imposed upon a consumer. Reference to Sections 39 and 44 of the Act may also be made, which are penal provisions of the Act imposing criminal liability upon an offender. Section 2 (c) of the Act cannot be read to mean that only the landlord and not the person who has been found dishonestly abstracting electrical energy could be proceeded against. The statutory theft created under Section 39 of the Act is against a person who has been shown to have dishonestly abstracted, consumed or used electricity energy. As stated earlier, the joint inspection report, prima facie, showed that at the time of inspecting the offending meters which were in the custody and control of the tenant (M/s. ABC Nakufreight Limited) and they were found dishonestly abstracting electrical energy. Strangely enough, M/s. ABC Nakufreight Limited, the tenants, have not been charge-sheeted under Section 39/44 of the Act read with Section 379, Indian Penal Code. However, the material collected by the prosecution agency does not make out a case under Section 39 /44 of the Act read with Section 379, Indian Penal Code against the petitioner. An obvious error has crept in on misreading of Section 2 (c) by the Court below who have imposed criminal liability on the petitioner for the alleged offence. I am of the view that the impugned order framing charge against the petitioner under Section 39/44 of the Act read with Section 379, Indian Penal Code has resulted in miscarriage of justice. In this view of the matter, it is entirely competent for the High Court to interfere under Section 482, Cr. P. C. to annul the manifest illegality which has resulted in the miscarriage of justice. ( 10 ) FOR the foregoing reasons, I allow the revision petition and the impugned charge framed against the petitioner under Section 39/44 of the Act read with Section 379, Indian Penal Code is quashed and the petitioner is discharged.