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2009 DIGILAW 65 (CAL)

Vikas Singh v. STATE OF WEST BENGAL

2009-02-04

ARUNABHA BASU

body2009
JUDGMENT Arunabha Basu, J.: The revisional application under section 401 read with section 482 of the Code of Criminal Procedure is directed to quash the proceeding in connection with Bhadreswar P.S. Case No. 42 of 2008 under section 135(1)(a)(b)(c) of the Electricity Act, 2003 as amended under Electricity (Amendment) Act, 2007 (hereinafter called the Act). 2. Petitioner herein is aggrieved by the registration of the aforesaid case which was initiated on the basis of FIR lodged by Pradip Kumar Chatterjee, Assistant Engineer Electricity under Hooghly (D) Circle. In the FIR allegation is raised against the petitioner along with another person that during inspection conducted by the officer of West Bengal State Electricity Board, theft of electricity could be detected which is punishable in terms of provision under section 135 of the Act. 3. In the revisional application petitioner has raised number of pleas such as he has no connection with the aforesaid premises and has taken several steps including initiation of criminal case against another person and also intimating the electricity department about the entire position including prayer for disconnection. 4. Petitioner herein has sought to invoke the inherent power of this Court vested under section 482 of the Code of Criminal Procedure. The power under section 482 of the Code of Criminal Procedure is exercised by this Court as ex debito justitiae. The power is exercised to prevent the abuse of the process of Court. It is unnecessary to highlight all the decisions of the Supreme Court wherein the Hon'ble Apex Court has explained the situation under which such power shall be exercised. The power even though wide must be exercised sparingly and .in rarest of rare cases. 5. In State of Haryana vs. Bhajan Lal, reported in 1992 Supp (1) Supreme Court Cases 335, Supreme Court has indicated illustrative categories where such power is required to be exercised. The illustrative categories are reproduced below: "(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. The illustrative categories are reproduced below: "(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is mainfestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 6. So far as the present case is concerned, it may be pointed out that the contention as raised by the petitioner herein in his revisional application appears to be disputed question of fact which can only be established during the course of evidence. So far as the present case is concerned, it may be pointed out that the contention as raised by the petitioner herein in his revisional application appears to be disputed question of fact which can only be established during the course of evidence. In other words the acceptance or rejection of the grounds taken by the petitioner herein, is a subject-matter of trial and when the Court, in order to decide a point requires to look into the evidence, then the same cannot be the subject-matter of invoking inherent power of this Court. It may be pointed out that after perusing the FIR, it cannot be stated that no prima facie case is made out against the petitioner for commission of offence of theft of electricity. The word 'whoever' appearing in section 135 is indicative enough that the legislature has not intended that the .offence of theft of electricity can only be committed by specific class of persons. Whether the petitioner is or is not involved in the commission of offence in view of specific plea raised by him cannot be decided without considering evidence. In other words the plea raised by the petitioner falls within the category of disputed fact and unless the same is established, this Court is not in a position to accept the same as correct. 7. Learned Advocate for the State during the course of his submission pointed out that the present application, which is filed on 20.6.2008 as framed will not be maintainable in view of the fact that in this case charge-sheet is already submitted by the police and after submission of charge-sheet the FIR cannot be quashed. 8. I am in agreement with the submission made by the learned Advocate for the State. In State of Punjab vs. Dharam Vir Singh Jethi, reported in 1994 Supreme Court Cases (Cri) 500, the Hon'ble Supreme Court while setting aside the order passed by the High Court where the High Court quashed the FIR held,- "In any case, pursuant to the First Information Report the investigation was undertaken and a charge-sheet or a police report under section 173(2) of the Code of Criminal Procedure was filed in the Court. If the investigation papers annexed to the charge sheet do not disclose the commission of any crime by the respondent concerned, it would be open to the Court to refuse to frame a charge, but quashing of the First Information Report was not permissible." 9. Under these circumstances, I am of the view that this is not a fit case to invoke the inherent power of this Court under section 482 of the Code of Criminal Procedure. 10. The revisional application is disposed of with the direction that the petitioner if he is so advised may take all the plea before the learned Court below at appropriate stage. 11. There shall be no order as to costs. 12. Criminal Section is directed to send a copy of the order to the learned Court below. 13. Criminal Section is also directed to supply photostat copy of the order to the parties as and when applied for. 14. Case diary be returned. Appeal disposed of.