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2008 DIGILAW 481 (CAL)

Jabir Hossain v. STATE OF WEST BENGAL

2008-05-07

PARTHA SAKHA DATTA

body2008
Judgment :- (1.) BY this application under section 397/401 read with section 482 of the Cr. PC prayer is made for quashing of a chargesheet being chargesheet No. 12 of 2004 dated 28. 02. 2004 arising out of Falakata ps Case No. 91 of 2003 dated 26. 11. 2003 under section 135 of the Indian electricity Act read with section 379 of the IPC pending before learned additional Sessions Judge, Special Court (Electricity Act), Jalpaiguri. Also is challenged the order dated 30. 08. 2005 passed by the said learned Judge issuing warrant of arrest against the petitioner. (2.) ASSISTANT Engineer, WBSEB lodged an FIR with the OC Falakata PS on 26. 11. 2003 against this petitioner alleging that he had been to the premises of the petitioner situated at Uttar Deogaon, Jateswar, Dist-Jalpaiguri accompanied by the officials of the WBSEB, conducted inspection of the premises and found the petitioner dishonestly tapping the overhead services facility of WBSEB for running a Husking Mill of 10 H. P. Seizure was made of 1993 meter P. V. C. wire (approximate) of aluminium making on the day of inspection from the premises. The police submitted chargesheet against the petitioner under section 135 of the Indian Electricity act read with section 379 of the IPC. (3.) IT has been contended in the revisional application that sometime in the year of 1996 the petitioner applied for new electricity connection (industrial) and deposited the quotation amount of Rs. 13,230/ -. On November 25, 2003 the officials of WBSEB visited the premises and then after sometime the authorities issued a provisional bill for Rs. 1,25,904/- said to be due because of alleged tapping and using unauthorized electricity connection. The petitioner made a complaint before the Ombudsman under the West bengal Electricity Act and the Ombudsman asked for a report and then passed an order partially in favour of the petitioner. The WBSEB preferred an appeal against the order of Ombudsman before the West Bengal electricity Regulatory Commission and hearing. took place on 02. 05. 2005. The said Commission passed an order to the effect that the WBSEB would dispose of the complaint of the present petitioner appropriately in terms of its general conditions of supply and refund the same already taken from the petitioner, and if the petitioner would prefer to apply afresh then the WBSEB would deal with the application promptly under the Act. The said Commission passed an order to the effect that the WBSEB would dispose of the complaint of the present petitioner appropriately in terms of its general conditions of supply and refund the same already taken from the petitioner, and if the petitioner would prefer to apply afresh then the WBSEB would deal with the application promptly under the Act. There was no whisper of any criminal proceeding. When the police came to the place of the petitioner he came to know that a criminal case had been registered against him and the learned Additional Sessions Judge (Special Court). Jalpaiguri issued warrant of arrest after the police submitted chargesheet against him. It has been contended in the revisional application that the chargesheet was mechanically submitted without application of mind, that the FIR was vague and ambiguous and does not reveal the quantum of loss suffered by the WBSEB, not does it indicate the total kilowatt of electrical energy allegedly stolen and no source has been specified wherefrom the petition had been allegedly tapping the line for dishonest abstraction of electricity energy. No ingredient of offence under section 379 of the IPC was there. The entire FIR and the chargesheet should be quashed for ends of justice. Petitioner is entitled to get the refund of certain sum of money and he has been exonerated of all the charges levelled against him. (4.) I have heard Mr. Dipankar Pal, learned Advocate appearing for the petitioner who draws my attention to the order of West Bengal Electricity regulatory Commission wherein the WBSEB was directed to dispose of the complaint of the petitioner and refund the sum already taken from him. Thus, according to Mr. Dipankar Pal, learned Advocate appearing for the petitioner the order of the Regulatory Commission demolishes the alleged charge of dishonest abstraction of electrical energy and in view of the order of the Commission there was no point in proceeding with the criminal case. Mr. Jayanta Narayan Chatterjee, learned Advocated appearing for the wbseb submitted that the order of the Commission is in a different fact situation, having no nexus with the criminal proceeding. Mr. Jayanta Narayan Chatterjee, learned Advocated appearing for the wbseb submitted that the order of the Commission is in a different fact situation, having no nexus with the criminal proceeding. It appears that the regulatory Commission was dealing with the complaint of the petitioner wherein the petitioner alleged that he has a separate electricity connection for drawing water from a deep tube well for the purpose of cultivation of his own agricultural land, that he has been paying regularly the charges for consumption of electricity for the electricity connection, that the WBSEB has not furnished any evidence to show that the petitioner ever sought for supply of power for his properties Husking Mill from the existing STW Feeder and that the WBSEB has not furnished any evidence to show that it had ever asked for a test report. The petitioner prayed for refund of Rs. 18,000/-representing the amount of Rs. 13,230/-, the quotation amount, with interest thereon. The order does not show that the subject-matter of the criminal proceeding regarding alleged dishonest abstraction of electrical energy was traversed therein. The Ombudsman against whose order appeal was taken before the Regulatory Commission ordered that the WBSEB may pursue the illegal tapping case with the police so that the criminal case is brought to an end expeditiously. Now the facts alleged in the revisional application are the line of defence which the petitioner may agitate before the learned trial Court at appropriate stage of the proceeding. The law is well-settled that an FIR or the petition of complaint can be quashed only when it does not prima facie give rise to any offence. Having read the FIR it does not appear that no offence was prima facie made out. The FIR was investigated into and charge sheet has been submitted. In such circumstances, when the law is that the quashing of a criminal proceeding should be in a rarest of rare case, it does not appear to me that the proceeding should be quashed on the ground that there was an order of Ombudsman and that of Regulatory commission which partially went in favour of the petitioner. The law is equally well-settled that when charge sheet is submitted the Revisional Court exercising jurisdiction under section 482 of the Cr. PC must not have a roving enquiry and determine the veracity or otherwise of the prosecution case. The argument of Mr. The law is equally well-settled that when charge sheet is submitted the Revisional Court exercising jurisdiction under section 482 of the Cr. PC must not have a roving enquiry and determine the veracity or otherwise of the prosecution case. The argument of Mr. Pal that the FIR does not reveal the quantum of loss in terms of money suffered by the WBSEB,. nor does it indicate the total kilowatt of energy allegedly stolen and that no source has been specified wherefrom the alleged tapping was made can hardly be entertained in this revisional application in view of the fact that these are all matters of fact which can appropriately be canvassed only at the trial. It can only be said that charge under section 379 of the IPC must not accompany the charge under section 135 of the Electricity Act because the ingredient of section 379 of the IPC are already there in the charge under section 135 of the electricity Act. And if the charge is framed under section 135 of the Electricity act it need not take the aid of section 379. It is submitted that the learned judge was not justified in issuing warrant of arrest. It appears from the order of the learned Judge dated 30. 08. 2005 that warrant of arrest was earlier issued and it is not that by that order warrant of arrest was issued. The order dated 30. 08. 2005 shows that since no execution report was received on that date the learned Judge fixed another date for report of execution of warrant of arrest. (5.) THE petitioner in the circumstance, may if so advised appear before the learned Judge within a month from the communication of this order and seek for bail and till that time warrant of arrest may not be executed against him, but if the petitioner failed to surrender before the learned judge, the learned Court below will be in the law to proceed against the accused. (6.) SUBJECT to what has been said above the revisional application is dismissed. Revisional application dismissed.