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Madhya Pradesh High Court · body

2003 DIGILAW 212 (MP)

Hargyan v. State of M. P.

2003-01-31

P.C.AGRAWAL, S.S.JHA

body2003
JUDGMENT Jha, J. -- 1. This reference has been made to resolve the controversy arising out of conflicting decision of the Single Bench of this Court. Conflicting views have arisen on the point whether a complaint for an offence under section 379 IPC read with section 39 of Indian Electricity Act is maintainable on the complaint of Electrical Inspector or an officer of the Electricity Board is also competent to file the complaint. 2. The only question involved in the case is whether under section 50 of the Indian Electricity Act, prosecution can be lodged on the complaint of the officers of M.P. Electricity Board. 3. For the purpose of examining the controversy it is necessary to examine the provision of section 50 of the Indian Electricity Act which deals with institution of prosecution. Section 50 of the Act is reproduced herein below : "Section 50. Institution of prosecutions -- No prosecution shall be instituted against any person for any offence against this Act or any rule, licence or order there under, except at the instance of the Government or a State Electricity Board or an Electrical Inspector, or of a person aggrieved by the same." It may be mentioned here that this Act was amended in the year of 1986 and prior to amendment section 50 stood as under : "Institution of prosecutions -- No prosecution shall be instituted against any person for any offence against this Act or any rule, licence or order there under, except at the instance of the Government or an Electrical Inspector, or of a person aggrieved by the same." The question involved in the case is whether prosecution can be instituted against any person for an offence under the Electricity Act or any rule, licence or order there under, except at the instance of the Government or Electrical Inspector or Electricity Board or of a person aggrieved by the same. 4. Counsel for the petitioner submitted that no cognizance can be taken on the complaint of theft at the instance of the officer of the Electricity board, unless they are authorised by the Electricity Board. In the present case on failure to prove that the Junior Engineer was competent to lodge FIR, entire prosecution is bad in law and conviction of the petitioner deserves to be set aside. 6. In the present case on failure to prove that the Junior Engineer was competent to lodge FIR, entire prosecution is bad in law and conviction of the petitioner deserves to be set aside. 6. On the other hand, counsel for the Electricity Board submitted that the word "person aggrieved" in section 50 of the Electricity Act has a very wide connotation. The term "person aggrieved" cannot be construed narrowly. He submitted that it is Electricity Board which supplies the electricity and if there is any electricity theft, it is the Electricity Board which is a person aggrieved by the act of theft. Therefore, being person aggrieved complaint can be lodged by any of the Officer-In charge of the particular area. If any officer is deployed to look after the affairs of the electric supply or other work of the Board then he is a competent person to lodge complaint which shall be on behalf of Electricity Board. Any officer who is lodging the complaint will fall in the category of Principal Officer of the Electricity Board. He submitted that the complaint at the instance of Junior Engineer of Electricity Board is maintainable as he was In charge of particular area where during the course of his duty he has detected the theft and the officer detecting the theft is an officer competent to file complaint. He also referred to resolution No. 19.4 passed in the meeting of M.P. Electricity Board held on 28.1.1977, wherein powers were delegated to the authorities and the officers to lodge complaint on behalf of Electricity Board. Resolution is reproduced below: "19.4 Authorisation in favour of Field Officer of the Board in regard to filing of complaints and prosecution there for. He also referred to resolution No. 19.4 passed in the meeting of M.P. Electricity Board held on 28.1.1977, wherein powers were delegated to the authorities and the officers to lodge complaint on behalf of Electricity Board. Resolution is reproduced below: "19.4 Authorisation in favour of Field Officer of the Board in regard to filing of complaints and prosecution there for. Decided that for the purpose of having the prosecution instituted by the Board as an 'aggrieved person' under section 50 of the Indian Electricity Act, 1910 against the persons committing any offence against the said Act or any rule or Order made there under, the following officers of the Board, namely the Superintending Engineers, Divisional Engineers, Assistant Engineers and Officer In-charge, are hereby given the requisite authority to act for and on behalf of the Board within the jurisdiction of their respective areas and that the prosecutions so instituted by any of such officers, both in respect of pending cases as well as the cases which may hereinafter arise, shall be deemed to have been instituted for and on behalf of the• Board and at the instance of the Board as an 'aggrieved person' within the meaning of section 50 of the Indian Electricity Act, 1910." 6. Shri J.P. Gupta, Senior Advocate has appeared as amicus curiae and submitted that the word "person aggrieved" should be construed very widely. It cannot be considered in narrow sense. He submitted that an honest consumer of the electricity is also a "person aggrieved." Rates of electricity charges have been increased and extra burden is being imposed by the Electricity Board upon the consumers. He, therefore. submitted that even a consumer of electricity is also a person aggrieved. Shri Gupta, submitted that on account of technicalities no person involved in commission of theft of electricity can go scot-free. 7. In the case of Suleman v. State of M.P., Reported in 1980 JLJ, Page 117, it is held while considering the scope of sections 39 and 50 of the Electricity Act and sections 378, 379 of IPC, that dishonest abstraction of electricity mentioned in section 39 of the Electricity Act cannot be made an offence under the Indian Penal Code. The dishonest abstraction by virtue of section 39 of the Electricity Act is a theft within the meaning of the Penal Code. The dishonest abstraction by virtue of section 39 of the Electricity Act is a theft within the meaning of the Penal Code. Section 50 contemplates a prosecution either at the instance of the Government or at the instance of the Electrical Inspector. Even if a prosecution is launched by police as apparently it could be launched by police, as this is a cognizable offence, it could only be initiated on the report of the Electrical Inspector or under orders of the Government. In another Single Bench judgment in the case of Jhalkan Singh and another v. State of M.P. reported in 1981 JLJ, Page 560, it is held that the aggrieved person viz. the officer-in-charge of the Electricity Circle had initiated the complaint on the strength of which the State has prosecuted the accused and it was held that the prosecution was found to be properly instituted and there is no illegality or irregularity in the procedure, in the matter of trial of accused. 8. In the case of State of M.P. v. Tunda, reported in 1995 Vol. II, MPWN, SN. 52, it is held that FIR should be lodged by any officer under the State Government or by the Electrical Inspector. Asstt. Engineer has no jurisdiction to file the complaint and held that no cognizance can be taken on the FIR lodged by the Asstt. Engineer of the Electricity Board. In the case of State of M.P. v. Atmaram, reported in CrLR (M.P.) 1980, Note No. 123., it is held that in the case of theft of electricity, Asstt. Engineer is an aggrieved person and prosecution instituted at his instance is valid. Conflicting views are also taken in the cases of Sardar Singh v. State of M.P., reported in 1986 (II) MPWN 183, Shankarlal v. State of M.P., reported in 1988(1) MPWN 143, Surendra Singh v. State of M.P.. reported in 1991 (II) MPWN 20, State of M.P. v. Kumar Singh, reported in 1992 (1) MPWN SN 80 and State of M.P. v. Ramsingh decided in Criminal Revision No. 84/1987 by Hon 'ble Chief Justice Shri V.L. Bhat, wherein it is held that the complaint is maintainable. 9. It may be pointed out that even in subsequent judgment effect of amendment in section 50 of the Indian Electricity Act was not taken note of. The words "or State Electricity Board" were inserted by Act No. 31 of 1986. 9. It may be pointed out that even in subsequent judgment effect of amendment in section 50 of the Indian Electricity Act was not taken note of. The words "or State Electricity Board" were inserted by Act No. 31 of 1986. However, the Courts were holding that the complaint can be initiated only at the instance of Electrical Inspector had missed the amendment in section 50 of the Electricity Act. The importance of word "person aggrieved" occurring in Electricity Act under section 50 of the Electricity Act 1910 was considered in the case of Ram Chandra Prasad Sharma and others. v. State of Bihar and another, reported in AIR 1967 Supreme Court at Page 349. In this case, prosecution was launched at the instance of a person holding power of attorney of an Electric Supply Company and prosecution was at the instance of "person aggrieved" within the meaning of section 50. In para 10 of the judgment it is held that the prosecution was commenced with a charge-sheet submitted by the police to the Judicial Magistrate. The offences were investigated into by the police after the first information report was launched with them by one Bhattacharya. What is contended is that information given by him could not entitle the police to submit the charge-sheet. It is also said that submission of a charge-sheet by the police is not the same thing as institution of prosecution at the instance of the State. It is, however, not disputed that if the law was set in motion by a person aggrieved by making a first information report to the police a charge-sheet could properly be submitted by the police. It is true that Bhattacharya was not himself a "person aggrieved" and that the' 'person aggrieved" was the Electric Supply Company. The Electric Supply Company being a body corporate and must act only through its directors or officers. In the evidence of Ramaswami that he held a general power of attorney from the Electricity Supply Company and he was specifically empowered there under to act on behalf of the-Electricity Supply Company in all legal proceedings. The evidence shows that it was at his instance that Bhattacharya launched the first information report and, therefore, it would, follow that the law was set in motion by the' 'person aggrieved". The objection based on section 50 must, therefore, be held to be untenable. 10. The evidence shows that it was at his instance that Bhattacharya launched the first information report and, therefore, it would, follow that the law was set in motion by the' 'person aggrieved". The objection based on section 50 must, therefore, be held to be untenable. 10. Similarly in the case of A.R. Antulay v. Ramdas Sriniwas Nayak and another, reported in AIR 1984 Supreme court 718, the question of private complaint lodged in respect of offence committed by public servant and its cognizance by the Special Judge was considered. In para 6 of the judgment, wherein it is held that it is a well settled recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Criminal Procedure Code envisages two parallel and independent agencies for taking criminal offences to Court and considering the numerous statutory provisions it-was held that, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straight-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception. To hold that such an exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the Court would require an unambiguous statutory provisions and a tangled web of argument for drawing a far-fetched implication, cannot be a substitute for an express statutory provision. It was held that the complaint at the instance of individual is maintainable and he is also a person aggrieved. 11. In the case of State of Kamataka v. Adimurthy alias B. Moorthy, reported in AIR 1983, Supreme Court Page 822, the Apex Court while considering the scope of Section 50 of the Electricity Act and Kamataka Electricity Board Manual held according to the plain English language, the ordinary meaning of the phrase "at the instance of" in the collocation of words "No prosecution shall be instituted ..... except at the instance of" in Section 50 must, in the context in which it appears, mean "at the behest of, or at the solicitation of". The word "instance" as a verb means "to urge, entreat urgently importune". The meaning of the phrase "at the instance of" as given in the Dictionary "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" in section 50 of the Act has been understood. It is clear upon the terms of section 50 that it nowhere requires that the I authorization should be by a notification published in the Official Gazette.. 12. In the case of Avtar Singh v. State of Punjab. reported in AIR 1965 Supreme Court 666, it is held that the dishonest abstraction of electricity is an offence against the Indian Electricity Act •and not under Penal Code. In para 9 it is held that it is for the prosecution to establish that the prosecution has been initiated at the instance of person aggrieved. 13. Under the Electricity (supply) Act, 1948 it is the State Electricity Board which supplies the electricity to the consumers at a price fixed. 14. Thus, from the aforesaid discussion it is clear that an Electricity Board is a person aggrieved within the meaning of expression "person aggrieved" occurring in section 50 of the Act. Prosecution started at the instance of Asstt. Engineer or any person In charge of the affairs of the Electricity Board was the prosecution started at the instance of the Electricity Board, where electricity is generated and distributed by the Company or Electricity Board. Such Company or Board is the person aggrieved by the offence and where the c0mplaint for theft of electric energy is filed by the Asstt. Engineer or any other officer authorised by the Board and police after investigation submits charge-sheet then this is not an irregularity. The said Electricity Board is a person aggrieved by the theft of electricity and where an officer of the Board whom powers have been delegated to file a complaint before the Police, then complaint is maintainable. By the amendment in section 50, the said Electricity Board has been included as a person at whose instance the prosecution may be instituted. The said Electricity Board is a person aggrieved by the theft of electricity and where an officer of the Board whom powers have been delegated to file a complaint before the Police, then complaint is maintainable. By the amendment in section 50, the said Electricity Board has been included as a person at whose instance the prosecution may be instituted. In the case of State of M.P. v. Atmaram (supra) it is held that Asstt. Engineer is an aggrieved person and can lodge FIR whether he is authorised or not. 15. Considering the social menace of theft of electricity resulting into unwarranted power failure causing inconvenience to public at large. The offender cannot be allowed to escape on account of technicalities. The legislative intent is clear and specific. Legislature on learning that the offenders are being acquitted when complaint is lodged by the officers of the Electricity Board decided to amend the said Electricity Act and as per section 50' the complaint can be lodged at the instance of Electricity Board. But, mere word Electricity Board will not be sufficient, it is the word "person aggrieved" which requires. to be considered. An officer of the Electricity Board, who is In charge of the area detects the theft of electricity is duty bound to lodge the complaint with the police and at that time he will be a "person aggrieved". During performance of his duties if he detects some electricity thefts or dishonest abstraction, abstraction of any of the energy, then the officer of the said Electricity Board is competent to file a complaint on behalf of the said Electricity Board and the complaint cannot be thrown out on the technicality that the complaint was not lodged by a competent person. Such complaint at the instance of the officer of the Electricity Board who is in charge to look after the affairs of the Electricity Board in a particular area will be maintainable and on such complaint police can initiate investigation and is competent to file challan if on investigation the allegation is found to be correct. Therefore, we hold that the complaint can be lodged by any of the officer of the Electricity Board appointed at a particular place to look after supply of the Electricity. The Board is also competent to authorise an officer to lodge complaint by passing a resolution. 16. Therefore, we hold that the complaint can be lodged by any of the officer of the Electricity Board appointed at a particular place to look after supply of the Electricity. The Board is also competent to authorise an officer to lodge complaint by passing a resolution. 16. We have given our anxious thoughts the arguments advanced by Shri J.P. Gupta, Senior Advocate, amicus curiae. Since theft of electricity is a social menace and the consumer of electricity is suffering on account of such dishonest abstraction of electricity, therefore, the consumer is also a person aggrieved. If consumer is a person aggrieved then he is also competent to lodge FIR and the prosecution at the instance of such consumer is also maintainable. We have also mentioned that if such theft are detected and prosecution agency lacks in performing his duties then the person aggrieved is also liable to file complaint before the Court which shall be examined and determined by the Court in accordance to law. 17. Such complaint cannot be thrown out. The laws made are to be implemented and they cannot be annulled on the ground of technicalities and should be enforced. 18. The word "person aggrieved" cannot he construed narrowly. It has a wide connotation and considering the case in broad prospective wherein illegal extraction of electricity affects the society, it is held that any officer of the Electricity Board who finds the theft of electricity in his area of work is competent to lodge FIR and any challan or charge-sheet on the basis of such complaint is maintainable and the complaint cannot be thrown out at the threshold and we also hold that a consumer of electricity is also a person aggrieved and prosecution can be initiated at his instance. Accordingly we hold that the law laid down in the case of State of M.P. v. Tunda (supra), Suleman v. State of M.P. is not a good law. The view taken in the case of State of M.P. v. Atmaram (supra) and in the case of Jhalkan Singh and others v. State of M.P. is correct. The reference is answered accordingly. File be placed before the Single Judge according to roster for the decision of revision on its merits.