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2009 DIGILAW 1114 (JHR)

Bhagwati Rice & Flour Mills v. State of Jharkhand

2009-08-12

R.R.PRASAD

body2009
JUDGMENT : Through this writ application extraordinary jurisdiction of this Court as enshrined under Article 226 of the Constitution of India has been invoked for directing the respondent no.2, Superintendent of Police, Deoghar and also respondent no.3, Officer-in-Charge of Nagar Police Station, Deoghar to get the computerized meter seized in connection with a police case tested/analyzed by a competent Testing Agency before the meter looses its memory. It was submitted on behalf of the petitioners that M/s. Bhagwati Rice & Floor Mills situated at Baijnathpur, Deoghar on being given electric connection by the Jharkhand State Electricity Board in LTIS category was consuming electric energy and was making payment regularly and the trend of the consumption would show that it was always on increasing side for which payment was always made but suddenly on 8.7.2009, officials of the Board laid a raid in the premises of the petitioners and on inspection, seal of the meter box put by the Board was allegedly found tampered with and on its removal, when it was examined body seal as well as terminal cover seal were allegedly found to be tampered with and hence, first information report was lodged alleging therein that the accused persons by tampering with seals has been consuming electric energy stealthily and thereby committed offence under section 135/138 of the State Electricity Act. The said case was registered as Nagar P.S. case no.216 of 2009 under section 135/138 of the State Electricity Act. It was further submitted that the raiding party admittedly never found any foreign device to disturb the meter circuit and as such, any manipulation obstructing the reading of the meter must have been recorded and stored in the electric meter which is a Tamper Proof Meter and hence, if it is tested by an expert agency, everything would come to the surface as to whether there has been any theft of the electric energy but if the Investigating Agency would cause delay in getting the electric meter tested, every reading which is in the memory of the electric meter will disappear and in that event, thereby there would be miscarriage of justice and under this situation, Investigating Agency be directed to get the reading of the meter analyzed. However, learned counsel appearing for the Electricity Board submitted that having found several seals fixed at the meter tampered with, case was instituted for theft of electric energy. However, learned counsel appearing for the Electricity Board submitted that having found several seals fixed at the meter tampered with, case was instituted for theft of electric energy. On institution of the case the police has taken in possession of the meter in question and now the Investigating Agency would proceed with the investigation in the manner which it deems fit and proper as he is free to proceed with the investigation in its own way and under this situation, it would always be unwarranted if he is directed to investigate in a particular manner. Upon it learned counsel appearing for the petitioners submitted that there has been no doubt that the Investigating Agency is free to investigate the matter in its own way but if it appears to the Court that he is not proceeding in the manner to get the real fact to come to the surface, the Court in exercise of extraordinary jurisdiction can certainly direct the Investigating Agency to do justice to the parties. In support of his submission learned counsel has referred to a decision rendered in a case of Sashikant vs. Central Bureau of Investigation and others [ (2007) 1 SCC 630 ]. Having heard learned counsel appearing for the parties, it does appear that after the case was instituted, Investigating Agency is proceeding with the matter of the investigation and it is not known to us as to in what manner the Investigating Agency is proceeding with. It is only the speculation as it appears from the submission that the Investigating Officer has not been contemplating to get the data of the electronics meter analyzed by an expert agency. Assuming that the Investigating Officer has not been contemplating to get the data analyzed whether this Court in that situation does have power to direct the Investigating Officer to investigate the case in a particular manner, the answer certainly would be in negative. In a number of decisions the Hon’ble Supreme Court has held that the police has statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and that power of the police to investigate cannot be interfered by the High Court in its exercise of power under section 482 of the Code of Criminal Procedure or extraordinary power as enshrined under Article 226 of the Constitution of India. In this regard I may refer to a decision of the apex Court in a case of Divine Retreat Centre vs. State of Kerala and others [ (2008) 3 SCC 542 ] wherein it has been observed as under: “ It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an Investigating Officer mala fide. That power is to be exercised in rarest of the rare cases where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code.” Even in a case referred to above on behalf of the petitioners, it has been held that ordinarily it is not within the province of the Court to direct the Investigating Agency to carry out investigation in a particular manner, writ court ordinarily would not interfere with the functioning of the Investigating Agency, rather only in exceptional cases it may do so. The instant case never appears to be an exceptional case as nothing is on the record to show mala fide on the part of the police nor does it appear a case of non-compliance of the provisions falling under Chapter XII of the Code. Under this situation, petitioner is not entitled to relief as sought for and hence, this application is dismissed. However, before parting with this order, it may be observed that if the entire case rests on the analysis of the date of the electronic meter, it is normally expected that in order to arrive at the right conclusion one would go for the test.