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2019 DIGILAW 595 (HP)

Satish Seth v. State Of H. P.

2019-05-16

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. Since all these petitions raise common questions of law and fact, they are taken up together and are being disposed of with a common order. 2. The present petitions are maintained by the petitioners (accused persons) under Section 482 Cr.P.C. seeking a direction of this Court to quash FIRs No. 210 of 2015, dated 21.12.2015, 216 of 2015, dated 31.12.2015, and 183 of 2015, dated 23.07.2015, which were registered against the accused persons (petitioners herein) under different Sections of Indian Penal Code, Indian Forest Act and Environment Protection Act. 3. Tersely, the facts of the cases, as per the petitioners can be encapsulated as under: Some of the respondents herein (complainants) preferred complaints under Section 156(3) Cr.P.C. in learned Court below seeking directions to SHOs of concerned Police Stations for registration of FIRs against the petitioners under common Sections 120-B, 145, 351, 464, 467, 468, 405, 415, 416, 417, 422, 420, 452, 283, 271, 341, 379, 392, 395, 399, 506, 148, 166 of IPC, Section 14 of the Environment (Protection Act, 1986) and Sections 41 and 42 of the Indian Forest Act. In addition to the above sections, allegations under sections 156, 167, 471, 410 and 147 IPC were also leveled in some of the complaints. The learned Court below directed for registration of FIRs in the respective Police Stations under the relevant Sections. It is further averred in the petitions that petitioners are associated with the Company and the profile of the company is as follows: "(i) PKTCL i.e., Parvati Kol Dam Transmission Co. Ltd. has been granted a license by Central Electricity Regulatory Commission (License No. 5/Transmission/CERC dated 15th September, 2008 and therefore, PKTCL is a transmission licensee as per the Section 2(73) and Section 14 of the Electricity Act, 2003. (ii) Vide Notification dated 17th June 2009 issued by the Ministry of Power, Government of India, PKTCL has been conferred with powers of Telegraph Authority under Section 164 of the Electricity Act, 2003. (iii) The Ministry of Power, Government of India, vide its letter dated 14th November, 2008 has granted prior approval of the Government under Section 68 of the Electricity Act, 2003 for execution of the Project. (iv) That all necessary permissions were duly obtained from the Ministry of Power, Government of India before commencement of the works for laying of the transmission lines. (iv) That all necessary permissions were duly obtained from the Ministry of Power, Government of India before commencement of the works for laying of the transmission lines. That PKTCL has valid and subsisting No Objection Certificates/Approvals from Ministry of Environment and Forests; Ministry of Civil Aviation; Ministry of Defense; Power Telecom Coordination Committee." As per the petitioners, the impugned orders, whereby the learned Court ordered registration of FIRs against the petitioners is not maintainable. The petitioners have further averred that the learned Court below intermingled the provisions of Cr.P.C. as the Court below was not acting under Section 202 Cr.P.C.. Thus, the learned Court below had no power to keep the matter pending before it. As per the petitioners, no case or offence is made out against them. The petitioners also annexed various documents with their petitions and they have averred that the complaints have been made against them belatedly. The complaints had been moved with an object of minting money from the petitioners and random allegations have been imputed against the petitioners. The petitioners have further alleged that the complainants have other remedies available for redressal of their grievances, if any. With the above averments, the petitioner prays that the petitions be allowed and the FIRs registered against them may be quashed. 4. The respondents/State filed replies to the petitions. Precisely, the respondents/State contended that it is the discretion of the learned Court below either to enquire the case itself or direct the investigation to be conducted by the Police. It is further averred that investigation in any matter can only be conducted after the registration of FIR. As per the respondents/State the learned Court below has power under Section 202(1) to direct investigation to be made by the police. As per the respondents/State, investigation can only be completed, if the petitioners join the same. After exhaustively examining the material, the learned Court below ordered registration of respective FIRs, as there exists prima facie case against the petitioners and now the petitioners are deliberately delaying the investigation on one pretext or other. It is further contended without investigation, it would be wrong to hold that the act done by the present petitioners are justified or by mistake of facts believing themselves bound by law or of justified by law. The allegations against the petitioners can only be ascertained if the matter is thoroughly investigated. It is further contended without investigation, it would be wrong to hold that the act done by the present petitioners are justified or by mistake of facts believing themselves bound by law or of justified by law. The allegations against the petitioners can only be ascertained if the matter is thoroughly investigated. In view of the above averments, the respondents/State prayed that the petitions may be dismissed and interim orders passed in the present petitions, whereby further proceedings arising out of the respective FIRs were ordered to be stayed, may kindly be vacated, so that the matters can be investigated. 5. I have heard the learned Senior Counsel for the petitioners, learned Additional Advocate General for the respondents/State, learned counsel for the respective respondents and gone through the records carefully. 6. The learned Senior Counsel for the petitioners has argued that the impugned order(s) whereby the learned Court below ordered registration of FIRs is not sustainable in the eyes of law. He has argued that as the complainants enclosed numerous documents with their complaints, the learned Court below was duty bound to peruse these documents in consonance with the complaint and thereafter only any direction to police could have been issued. He has further argued that as the learned Court below passed the order under Section 156(3) Cr.P.C., the matter could not be kept pending before the same Court and the learned Court below also called the report after investigation on 19.01.2016, so the learned Court below exercised powers, which were not vested with it. He has argued that the learned Court below amalgamated the provisions of Cr.P.C. The learned Court below was not exercising the powers under Section 202 Cr.P.C., so the matter could not have been kept pending before the same Court. He has further argued that under the garb of the FIRs the respondents are trying to have more compensation, thus with the sole motive of minting money from the petitioners, the present petition has been filed. The work of laying transmission lines was completed in the year 2014 and the complaints were made to the learned Court much later, so there is unexplained delay in filing the complaints. The learned Senior Counsel has further argued that proper remedy for apt compensation is available to the complainants under different Acts, viz., Land Acquisition Act, 2013, Indian Electricity Act, 2007, Indian Telegraph Act, 2003 etc. The learned Senior Counsel has further argued that proper remedy for apt compensation is available to the complainants under different Acts, viz., Land Acquisition Act, 2013, Indian Electricity Act, 2007, Indian Telegraph Act, 2003 etc. He has argued that the complainants after receiving compensation took a slew and initiated false criminal proceedings against the petitioners just for financial gains, which is virtually an abuse to the process of law. Lastly, the learned Senior Counsel has argued that in the above backdrop the petitions may be allowed and the pending proceedings before the learned Trial Court, as also the FIRs wherein the petitioners have been indicted be quashed. 7. Conversely, the learned Additional Advocate General for the respondent/State has argued that the learned Magistrate can either enquire the matter himself or direct investigation to be conducted by the Police. He has further argued that in any matter first FIR is registered followed by investigation. He has further argued that the investigation is in initial stage, so the petitioners should join the same with clean hands. The petitioners are unnecessarily delaying the investigation by not producing the relevant records. He has argued that the learned Court below, after application of mind rightly ordered registration of FIRs against the present petitioners under different Sections. The guilt or innocence of the present petitioners can only be ascertained, if the matter is allowed to be investigated and without investigation presumption of innocence cannot be drawn. In the above backdrop, the learned Additional Advocate General prayed that the petitioners may be dismissed and the investigation in the matter be allowed to proceed further. 8. Sh. Amar Singh Sankhyan, learned counsel for respondents No. 4, 5 and 6 (in Cr.MMMO No. 33 of 2016) argued that as per the reply filed to the petition Mr. Daljit Singh Bijral Additional Vice President of Parbati Koldam Transmission Company Limited is incompetent under the law applicable to file and maintain the petition, as the delegated powers to Mr. Alok K. Roy by the share-holders, if any, on the principle of delegatus non protest delegare. Mr. Daljit Singh Bijral Additional Vice President or his delegate has no locus standi to file and maintain the present petition. Alok K. Roy by the share-holders, if any, on the principle of delegatus non protest delegare. Mr. Daljit Singh Bijral Additional Vice President or his delegate has no locus standi to file and maintain the present petition. He has further argued that no ground is available to the petitioners to invoke the jurisdiction of this Court under Section 482 Cr.P.C. He has argued that the company did not obtain No objection certificate from the competent forest authorities under the Forest Conservation Act, 1980 and Indian Forest Act, 1927, before felling of scheduled species of trees. The company also did not comply various statutory provisions, which were mandatory and by giving go by to these provisions the company executed the work and the petitioners are liable for such wrong execution of work. He has further argued that the provisions of Electricity Act, 2003 and Indian Telegraph Act, 1985, were available to the petitioners only when the PKTCL was BOOT Company, i.e., Built, Operate and Transfer Company, but in the interregnum, due to some reasons the Government converted it to BOO Company, i.e., Built, Operate and Own. Thus, the Government made PKTCL Company as owner of the transmission lines, so the provisions of Electricity Act, 2003 and Indian Telegraph Act, 1985, in the above circumstances, are not applicable for the loss/damages caused by the Company to the complainants and the petitioners are required to be punished. He has argued that in the above backdrop, the matter is required to be investigated thoroughly. He has prayed that the petitions be dismissed and the investigation be allowed to proceed further. 9. In fact, the controversy in hand is very short, whether the FIRs registered against the petitioners under different Sections (Sections find mention in the earlier part of this judgment) at the instance of the respondents and on the direction of the learned Court below under Section 156(3) Cr.P.C. are liable to be quashed without investigating the matter thoroughly or not? 10. Before touching the merits of the case, it would be apt to extract orders dated 29.08.2017 and 03.10.2017 passed by co-ordinate Bench of this Honble High Court in the present petitions: 29.08.2017: "Perusal of communication dated 28.10.2015, available at Page-71 of CrMMO No. 33 of 2016, suggests that Committee, constituted to inquire into the allegations having been made by the residents of area, submitted its report to the Deputy Commissioner, Bilaspur. Perusal of report, referred to above, suggests that various permissions as required under law, were not taken by the Parbati Koldam Transmission Company Limited (PKTCL), before laying transmission lines. This Court was unable to lay its hands on document, if any, suggestive of the fact that, action, if any, pursuant to report submitted by the Committee, was ever taken by the Deputy Commissioner, Bilaspur. In the aforesaid background, this Court deems it fit to direct the Deputy Commissioner, Bilaspur to file his personal affidavit specifically indicating therein the action taken pursuant to report submitted by the Committee, vide communication dated 28.10.2005. Affidavit, as stated above, shall be filed by the Deputy Commissioner, Bilaspur, within a period of four weeks from today. An authenticated copy of this order be supplied to the learned Additional Advocate General, for necessary compliance by Deputy Commissioner, Bilaspur. List on 3.10.2017." 03.10.2017: "Sequel to order dated 29.8.2017, Deputy Commissioner, District Bilaspur, has filed his personal affidavit, perusal whereof suggests that the then Deputy Commissioner, Bilaspur, after having received a joint complaint dated 20.1.2015, constituted a Fact Finding Committee comprising of Sub-Divisional Magistrate Sadar, District Bilaspur (Chairman), Divisional Forest Officer, Forest Division Bilaspur and Deputy Superintendent of Police (D.S.P. Headquarter) Bilaspur, vide order dated 29.1.2015 with the direction to submit a comprehensive report within a period of twenty days. It also emerge from the averments contained in the affidavit that subsequently, vide order dated 30.3.2015, Assistant Conservator Forest, Bilaspur, was also included as member in the aforesaid committee in place of DFO Bilaspur. Above referred Committee submitted its joint report through SDM Sadar, District Bilaspur vide letter No. BLS-SDM- SDR/2015-8839 dated 28.10.2015. The Then Deputy Commissioner after having perused report of fact finding committee forwarded the same to the Additional Chief Secretary (Forest) to the Government of Himachal Pradesh and to the Additional Chief Secretary (Power) to the Government of Himachal Pradesh vide office letter No. BLS-Peshi-15(3)92-III-57321-22 dated 29.12.2015, with the following request:- "(i) Action may kindly be initiated against the PKTCL company officers/officials for violation of the provision of Electricity Act, 2003 and Indian Telegraph Act, 1885 as stated above and non-adherence of parameters of Revenue, Horticulture, Agriculture and Forest Department for providing adequate compensation. (ii) As observed by the Committee, the matter may kindly be taken up with the Government of India for streamlining the process for providing compensation in such major projects of national importance." 2. It is quite apparent from the aforesaid communication that officials of PKTCL Company while erecting towers on the land of various stakeholders failed to comply with the provisions of Electricity Act, 2003 and Indian Telegraph Act, 1985 and as such, the Deputy Commissioner recommended the action against the officials of PKTCL Company. 3. After having carefully perused the aforesaid affidavit filed by the Deputy Commissioner, it is not discernable whether action, if any, was taken by the Additional Chief Secretary (Power) and Additional Chief Secretary (Forest) pursuant to aforesaid recommendation made by the Deputy Commissioner. 4. Accordingly, in view of the above, Additional Chief Secretary (Forest) and Additional Chief Secretary (Power) to the Government of Himachal Pradesh, are directed to file their personal affidavits specifically, indicating therein action/steps, if any, taken by them pursuant to aforesaid communication sent by the Deputy Commissioner (Bilaspur), within a period of three weeks. 5. Authenticated copy be supplied to the learned Additional Advocate General so that necessary compliance is made within the stipulated period." The above extracted orders unequivocally demonstrate that in the execution of work PKTCL Company failed to comply with the provisions of different Acts and even the Fact Finding Committee also sought that action may be initiated against the said company under the provisions of Electricity Act, 2003 and Indian Telegraph Act, 1885 and also non- adherence of parameters of Revenue, Horticulture, Agriculture and Forest Department for providing adequate compensation. 11. Admittedly, the complainants moved applications to the learned Magistrate below under Section 156(3) Cr.P.C. for registration of FIRs against the petitioners. Section 156 Cr.P.C. is as under: "156(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceedings of a police-officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (2) No proceedings of a police-officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as abovementioned." Thus, a bare perusal of the above Section shows that under Section 190 Cr.P.C. a Magistrate is empowered to order investigation in any cognizable case of which he/she has jurisdiction. Now, it could be apt to extract in extenso Section 190 Cr.P.C., which is as under: "190.(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try." 12. Indeed, under Section 190 Cr.P.C. Magistrate, having the jurisdiction, has been empowered to take cognizance of an offence and such a jurisdiction is exclusive. The Magistrate has to only see whether there exists sufficient grounds for further proceedings in the matter and for taking cognizance and no reasons are necessarily to be recorded as only a prima facie satisfaction is required, which this Court finds that there was material before the learned Magistrate for concluding that there exists a prima facie case. Thus, a Magistrate has only to see prima facie commission of the offence. The Honble Supreme Court in S.K. Sinha vs. Videocon International Ltd., 2008(2) SCC 492 as held as under: "19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a court or a Judge, it connotes "to take notice of judicially". The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone." In view of the above cited judgment, it is discernible that cognizance connotes to take notice of judicially and this judicial notice can only be taken in case there exists a prima facie case. Now, whether there exists a prima facie case or not, it would only be necessary to quote a para of letter No. BLS-Peshi-15(3)92-III-57321-22, dated 29.12.2015, whereby the concerned Deputy Commissioner requested the Government to initiate proceedings against the officers/officials of the Company in question. The relevant para of the said letter is as under: "(i) Action may kindly be initiated against the PKTCL company officers/officials for violation of the provision of Electricity Act, 2003 and Indian Telegraph Act, 1885 as stated above and non-adherence of parameters of Revenue, Horticulture, Agriculture and Forest Department for providing adequate compensation. (ii) As observed by the Committee, the matter may kindly be taken up with the Government of India for streamlining the process for providing compensation in such major projects of national importance." Thus, in view of the above extracted relevant excerpts of the letter, it can be said that there exists a prima facie case and the learned Magistrate rightly ordered registration of FIRs on the basis of material available to her. 13. Admittedly, revision against the order of a Magistrate under Section 156(3) directing the police to register the case and investigate is maintainable. However, Hon’ble Punjab and Haryana High Court in Amit Ahuja vs. Gian Parkash Bhambri, 2010(93) AIC 488, held that the accused cannot file a petition for quashing of complaint through his Attorney. The instant petitions have also been filed by the Attorney of the petitioners, so the maintainability of the petitions are also to be looked into and this Court finds that the petitions cannot be maintained, except by the accused, so under these circumstances also the petitions deserve to be dismissed. The instant petitions have also been filed by the Attorney of the petitioners, so the maintainability of the petitions are also to be looked into and this Court finds that the petitions cannot be maintained, except by the accused, so under these circumstances also the petitions deserve to be dismissed. However, in addition to this, it would be apt to observe that the question of maintainability has not been touched, as there exists a prima facie case against the petitioners, which is also clear from the records, and the matters need thorough investigation. 14. Admittedly, on 15.09.2008 PKTCL Company was granted license to transmit electricity as a transmission licensee and to this effect an agreement (Annexure P-1) was duly executed amongst Central Electricity Regulatory Commission and PKTCL Company. The above said agreement has clause No. 6, which provides as under: "6. This licence shall commence on the date of its issue and unless revoked earlier, shall continue to be in force for a period of 25 (twenty five) years." Thus, it is crystal clear that PKTCL Company was granted licence for 25 (twenty five) years only. The Fact Finding Committee found many irregularities in the execution of the work. The Committee found that the officials of PKTCL Company while erecting towers on the land of various stakeholders failed to comply with the provisions of Electricity Act, 2003 and Indian Telegraph Act, 1985 and as such, the Deputy Commissioner recommended the action against the officials of PKTCL Company. The learned counsel for respondents No. 4 to 6 (Cr.MMO No. 33 of 2016) has argued that initially PKTCL Company was BOOT (Built, Operate and Transfer Company) and after grant of licence on 15.09.2008 it became BOO (Built, Operate and Own), if it is so, now the Company has become owner of the transmission line. In view of the above contention, learned Court below has to see whether in the above circumstances the provisions of Electricity Act, 2003 and Indian Telegraph Act, 1985, are not applicable and PKTCL Company or its officers/officials were authorized to go inside the private property without permission of the landlord, however, it is left open to be adjudicated upon by the learned Trial Court. At this stage, this Court, after analyzing the available material, finds that there exists a prima facie case for registration of FIRs against the PKTCL Company and the petitioners. 15. At this stage, this Court, after analyzing the available material, finds that there exists a prima facie case for registration of FIRs against the PKTCL Company and the petitioners. 15. In view of what has been discussed hereinabove, it is more than safe to hold that the learned Court below had not erred in ordering registration of FIRs against the petitioners and now the FIRs need to be investigated thoroughly by the police. Thus, this Court does not find any merits in the petitions, so the same are dismissed. Records of the Court below, if any, be sent back immediately. Pending application(s), if any, shall also stand(s) disposed of.