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2003 DIGILAW 318 (JHR)

Gupteshwar Tiwary v. State of Jharkhand

2003-03-06

AMARESHWAR SAHAY

body2003
Order Heard Mr. Jaiswal, learned counsel appearing for the petitioner and Mr. V.P. Singh learned senior counsel for the opposite party no. 2. 2. In the present application, the petitioner has prayed for quashing the order dated 26.5.2001 passed by learned Chief Judicial Magistrate, Palamau taking cognizance for the offence under Section 379 of the Indian Penal Code and Section 39/44 of the Indian Electricity Act, 1910. 3. The facts in short giving rise to this application are that the first information report was lodged on 17.8.99 against the petitioner being Daltonganj Sadar P.S. Case No. 277 of 1999 alleging that the officers of the Electricity Board raided the house of the petitioner and found that the petitioner was illegally consuming electricity, after having direct connection from the pole to the meter with the help of five meter electric wire. It is further stated in the F.I.R. that the petitioner had already a Meter in the ground floor which was found to be in running condition. It is alleged that the said five meter wire was seized. The petitioner was arrested and the F.I.R. was lodged against him under Section 379 of the Indian Penal Code and 39/44 of the Indian Electricity Act. The police took up the investigation and submitted charge sheet against the petitioner for the aforesaid offences, on the basis of which, the learned Chief Judicial Magistrate took cognizance of the offences aforesaid against the petitioner. 4. This Court by order dated 21.3.2002 called for the case diary and notice was issued on the opposite party no. 2 i.e. the informant. 5. The learned counsel for the petitioner submitted that the police after completion of the investigation was of the view that no case is made out against the petitioner and the police was going to submit Final Report on the ground of "mistake of fact" but only on the orders of the Superintendent of Police, the charge sheet was submitted against the petitioner, in spite of the fact that no evidence has been collected by the police so as to make out a case of theft of energy against the petitioner. 6. Perused the case diary. 6. Perused the case diary. From the case diary it appears that almost all the witnesses examined during investigation, have stated that the electrical connection of the petitioner was disrupted because the trunk of tree situated near the electric pole had fallen on the supply line of the petitioner, which was reported to the authorities of the Electricity Board but no action was taken by the Board. Therefore, in order to get his electrical connection and supply of energy restored, the petitioner got it connected from the pole to the Meter. 7. Therefore, from the aforesaid statement of the witnesses, it does not appear at all that either the petitioner had any intention or his action was to commit theft of energy in any manner. The gist of the evidence collected during enquiry has been mentioned in the supervision note of Dy. S.P. which is Annexure-4 to this application. From perusal of the said supervision note it appears that the Dy. S.P. was also of the view that it was a case of mistake of fact. In paragraph no. 29 of the case diary, the investigation officer has clearly stated that the petitioner though had taken direct connection from the pole by means of a wire but he has not committed theft of energy. 8. Theft of energy has been defined under Section 39 of the Indian Electricity Act, 1910 which speaks that whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than one thousand rupees, or with both. From plain reading of the aforesaid section it appears that the first ingredient to attract Section 39 of the said Act is that there should be a dishonest intention for abstracting or consuming the energy. For attracting the Section 379 I.P.C. the ingredient of theft as envisaged under Section 378 I.P.C. is must. According to which, whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent moves that property in order to such taking, is said to commit theft. 9. Therefore, from plain reading of Sections 378, 379 I.P.C. and Section 39 of the Indian Electricity Act, 1920 it is apparently clear that the first ingredient is that the accused should have dishonest intention. 9. Therefore, from plain reading of Sections 378, 379 I.P.C. and Section 39 of the Indian Electricity Act, 1920 it is apparently clear that the first ingredient is that the accused should have dishonest intention. In the present case, from plain reading of the F.I.R. and after going through the case diary it appears that the dishonest intention on the part of the petitioner is absolutely absent and as he was already having electrical connection and meter fixed by the Board in his premises which was found to be in running condition. 10. In that view of the matter, I find that the learned Chief Judicial Magistrate, without applying his judicial mind has mechanically taken cognizance of the offences against the petitioner under the aforesaid sections. 11. In the result, this application is allowed. The order taking cognizance against the petitioner is quashed.