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2015 DIGILAW 25 (CAL)

Sabir Ali v. State of West Bengal

2015-01-15

SHIB SADHAN SADHU

body2015
Judgment Shib Sadhan Sadhu, J. 1) By filing this application the petitioner seeks to quash the proceeding arising out of Burdwan P.S. F.I.R. No.918 dated 28th July, 2014 under Section 138 of the Electricity Act, 2003 and under Section 186 of the Indian Penal Code. 2) The genesis of the case against him is traced to an incident that took place on 28.07.2014 at about 11.56 a.m. when the complainant Pradip Nandi, AE & SM, BDN CCC-iii Electricity supply along with other official went to check the disconnected premises at Becharhat opposite to Satima Cold Storage. It was noticed that Consumer ID 512070220 with Meter No.HH961636 and Consumer ID No.512064929 with Meter No.960514 both in the name of Monoranjan Mandal now user Sabir Ali were still then disconnected for non-payment of outstanding dues but inhabitants of both the premises are enjoying electricity from other premises of consumer No.512052899 through Meter No.K048279 in the name of Monoranjan Mandal now user Sabir Ali. After inspection, report was prepared and they seized approximately 130 meter 2 core cable through which power was supplied to the disconnected premises from Consumer ID 512052899. The Inspecting team tried to disconnect the existing live connection of Consumer ID 512052899 but could not due to obstruction of the user. 3) On such occurrence the complainant lodged FIR alleging offence under Section 138 of the Electricity Act, 2003 (as amended) and under Section 186 IPC. Upon such complaint Burdwan P.S. Case No.918 dated 28.07.2014 under the aforesaid Section was registered and the investigation was taken up and is still in progress. 4) Mr. Sandip Ghosal, Learned Advocate for the petitioner contends that the allegation made out in the FIR to the effect that the inhabitants from the other premises are enjoying electricity from the premises of Consumer ID 512052899 does not constitute offence under Section 138 of the Electricity Act inasmuch as it is not reconnection of any meter with any electric line of other works being the property of a licensee when the electric line or other works has or have been cut or disconnected. Therefore, according to him, the FIR even if accepted at its face value, does not make out any offence so as to satisfy the ingredients of Section 138 of the Electricity Act and Section 186 of the Indian Penal Code. Therefore, according to him, the FIR even if accepted at its face value, does not make out any offence so as to satisfy the ingredients of Section 138 of the Electricity Act and Section 186 of the Indian Penal Code. So the continuation of the proceeding would be a sheer abuse of legal process and thus it should be quashed. 5) Mr. Ayan Basu, Learned Advocate appearing for the State, on the contrary, submits that the allegation made in the FIR is sufficient to establish prima facie commission of offence under Section 138 of the Electricity Act, 2003 and under Section 186 IPC. He drew my attention to the relevant materials in the case diary namely the statement of witnesses and the seizure list. He submits further that the investigation is on progress and the same is yet to take its final shape. So it would be an over zealous exercise to jump to the conclusion that no offence as alleged is made out and the proceeding is liable to be quashed. Thus, according to him the investigation into the offence alleged should be allowed to be completed. 6) On hearing the Learned Advocate appearing for the parties and after going through the materials available on record along with the case diary, I find that there is a serious allegation of unauthorized user of electricity in the premises in which the electric meters were disconnected for non-payment of outstanding dues. It is further alleged that from the consumer ID 512052899 through meter No.K048279, the electricity was being supplied to those premises and a cable was seized. Therefore, it cannot be said that the allegation does not at all constitute any offence as alleged. 7) In State of Haryana Vs. Bhajanlal, 1992 Supp (1) SCC 335 :1992 SCC (Cri) 426 : AIR 1992 SC 604 the Hon’ble Supreme Court observed that the extraordinary power under Article 226 or inherent power under Section 482 of the Criminal Procedure Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The extraordinary power or inherent powers do not confer an arbitrary jurisdiction upon the court to act according to its whim or caprice. The Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. The extraordinary power or inherent powers do not confer an arbitrary jurisdiction upon the court to act according to its whim or caprice. The Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. The Supreme Court noted the following categories of cases wherein the extraordinary power under Article 226 or the inherent powers under Section 482 Cr.P.C. can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice though it may not be possible to lay down and precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. i) 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. ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose 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. iii) Where the controverted 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. iv) 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 Magistrate as contemplated under Section 155(2) of the Code. v) 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. v) 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. vi) Where there is an express legal bar engrafted in any of the provisions of 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. vii) Where a criminal proceeding is manifestly 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. 8) Therefore, the normal rule is not to interfere with the investigation and criminal proceedings except when the complaint or FIR broadly read does not disclose any offence and can be termed as abuse of process of law and it is not permissible to quash by appreciating the material evidence where charge sheet had been filed or stifle a legitimate prosecution. It is also well-settled legal position that if an offence is disclosed the Court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed [Vide (1999) 8 SCC 728 (Satvinder Kaur V. State)]. 9) Therefore, considering the factual position of the instant case at hand in the light of the principles of law highlighted above, I am of the opinion, that prima facie the FIR in question discloses commission of offence, and does not disclose abuse of process of law, and as such, it is not possible or permissible to quash the first information report. 10) For the reasons aforesaid, the instant Revisional Application stands dismissed.