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2000 DIGILAW 546 (CAL)

Bablu Hada v. State of West Bengal

2000-11-10

Debiprasad Sengupta

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JUDGMENT Debiprasad Sengupta, J. This revisional application is for quashing of an investigational proceeding arising out of Liluah P.S. Case No. 154(11)/92 dated 16.11.92 under section 39 of the Indian Electricity Act. 2. The opposite party No.2 herein being an assistant Engineer of West Bengal State Electricity Board lodged a complaint against the petitioner under section 39 of the Indian Electricity Act. It was alleged in the said complaint that the service connection of Connection Nos. K/2382 and K/2480 was disconnected on 23.5.92 and 17.8.92 respectively for non-payment of electricity charges. At the time of disconnection plastic seal bearing No. AB-00632 was fixed with Meter Box of service connection No. K/2382 and lead seal was fixed with meter box of service connection No. K/2480. It was alleged that the present petitioner broke the plastic seal as aforesaid and consumed electricity dishonestly and illegally through phase power Meter No. M-006332 which is a stop meter for the purpose of running his factory. On the basis of the aforesaid complaint the case was registered with Liluah Police Station as aforesaid. 3. The ld. Advocate appearing for the petitioner submits that no prior notice was contemplated under section 20(3) of the Indian Electricity Act was served upon the petitioner at the time of inspection of the disputed meter in question nor any inspection report or any report was prepared by the officers of the Board under section 26 of the Indian Electricity Act. The next submission made by the ld. Advocate appearing for the petitioner is that the defacto-complainant was nor an electrical inspector appointed by any notification in the Official Gazette and he is not a person within the meaning of section 50 of the Indian Electricity Act, 1910. Therefore, the prosecution started by the opposite party No.2 is without jurisdiction and in view of the provision of section 50 of the Indian Electricity Act. He is not empowered to lodge any complaint before the police station and as such the complaint is without jurisdiction and is liable to be quashed. 4. Mr. Banerjee, the ld. Advocate of the petitioner relies on a judgment reported in AIR 1983 SC 822 . The said appeal before the Hon'ble Apex Court was directed against a judgment of the Karnataka High Court affirming the order of acquittal passed by the Id. 4. Mr. Banerjee, the ld. Advocate of the petitioner relies on a judgment reported in AIR 1983 SC 822 . The said appeal before the Hon'ble Apex Court was directed against a judgment of the Karnataka High Court affirming the order of acquittal passed by the Id. Judicial Magistrate 1st Class acquitting the accused respondent of an offence punishable under sections 39 and 44 of the Indian Electricity Act read with section 379 of the Indian Penal Code. The appeal was preferred before the Hon'ble Apex Court by the State of Karnataka. The appeal was allowed. The judgment of the High Court of Karnataka upholding the order of acquittal of respondent was set aside and he was convicted of having committed an offence under section 39 of the Indian Electricity Act read with section 379 of the Indian Penal Code. But no sentence was imposed on the respondent having regard to the period of time that had elapsed. In the said case the complaint was lodged by the supervisor of Karnataka Electricity Board and order of acquittal was recorded by the trial court on the ground that the supervisor is not empowered to lodge any complaint in view of the provision of section 50 of the Indian Electricity Act. The order of acquittal passed by the trial court was also affirmed by the High Court of Karnataka. While allowing the appeal preferred by the State of Karnataka the Hon'ble Apex Court held as follows:- "According to the plain English language, the ordinary meaning of phrase 'at the instance of in the collection of words' No prosecution shall be instituted...... except at the instance of must, in the context in which it appears mean 'at the behest of, or at the solicitation of. The word 'instance of as a verb means 'to urge, entreat urgently, importune'. The meaning of the phrase' at the instance of as given in Random House Dictionary of the English language at p. 690 is; 'at the urging or suggestion of 'Instance' does not imply the same degree of obligation to obey as does 'command'. That is also the legal sense in which the phrase 'at the instance of is section 50 of the Act has been understood. It is clear upon the terms of section 50 that it nowhere requires that the authorisation should be by a notification published in the Official Gazette. That is also the legal sense in which the phrase 'at the instance of is section 50 of the Act has been understood. It is clear upon the terms of section 50 that it nowhere requires that the authorisation should be by a notification published in the Official Gazette. The order of acquittal recorded by the learned Magistrate and as affirmed by the High Court proceeds on a construction of section 50 of the Act which is wholly unwarranted and has resulted in manifest miscarriage of justice. There can be no doubt that the prosecution has been launched 'at the instance of the Electricity Board within the meaning of section 50 of the Act." 5. Mr. Banerjee the learned Advocate of the petitioner next relies on a judgment reported in AIR 1965 SC 666 (Abtar Singh vs. State of Punjab). In the said judgment it was held by the Hon'ble Apex Court that the onus of proving the fact that prosecution has been instituted at the instance of one of the persons mentioned in section 50 of Act, is on the pro-section. It appears from the said judgment that the appellant was prosecuted for theft of electrical energy and was convicted. The order of conviction was set aside by the Hon'ble Apex Court and the appeal was allowed. The judgment of the Hon'ble Court is not applicable in the present case in as much as the present case is at the initial stage when only FIR has been lodged with the police alleging commission of an offence under section 39 of the Act. There is no doubt that the onus of proving the fact that prosecution has been initiated at the instance of one of the persons mentioned in section 50 of the Act is on the prosecution. Such onus can be discharged by the prosecution only by adducing evidence. At this initial stage when the case is still at the stage of investigation it will not be proper for this court to decide such question. Mr. Banerjee next relies on a judgment reported in 1987 Criminal Law Journal 247 wherein it was held by the ld. Such onus can be discharged by the prosecution only by adducing evidence. At this initial stage when the case is still at the stage of investigation it will not be proper for this court to decide such question. Mr. Banerjee next relies on a judgment reported in 1987 Criminal Law Journal 247 wherein it was held by the ld. Single Judge of Madras High Court that where the prosecution was for theft of electrical energy under section 39 of the Electricity Act read with section 379 of the Indian Penal Code, for want of proof the Act and non-exhibiting any inspection report prepared by the officials under section 26 of the Act read with Rules 46 of the Electricity Rules, 1956, it is justified to come to a finding that the prosecution could not prove its case beyond all reasonable doubt. I have carefully gone through the judgment and in my considered opinion, the said judgment does not also have any manner of application in the present case. From a perusal of the said judgment it becomes clear that a criminal revision was preferred against the judgment and order of acquittal passed by the ld. Magistrate thereby acquitting the accused opposite party. The order of acquittal passed by the Trial Court was affirmed and the revisional application was dismissed. In the present case it is too premature to decide such question whether any prior notice under section 20(3) of the Indian Electricity Act was served upon the petitioner or any inspection report was prepared by the officers of the Board under section 26 of the Act. These are the points which can only be decided at the stage of the trial after taking evidence. In my considered opinion, it will not be proper for this court to decide such points at this initial stage when the present case is still at the stage of investigation. 6. In view of the discussion made above, in my opinion, it is not a fit case for quashing of a proceeding. The expression "at the instance of' in the context in Section 50 of the Act does not require that the authorisation should be made by a notification published in the Official Gazette. At this initial stage of investigation it will not be proper for this court to quash the proceeding. The expression "at the instance of' in the context in Section 50 of the Act does not require that the authorisation should be made by a notification published in the Official Gazette. At this initial stage of investigation it will not be proper for this court to quash the proceeding. The prosecution should be given adequate opportunity to discharge its onus by adducing evidence. The revisional application accordingly fails and the same is dismissed. Revisional application dismissed.