Research › Search › Judgment

Jharkhand High Court · body

2022 DIGILAW 1047 (JHR)

Kishor Kumar v. State of Jharkhand

2022-08-22

DEEPAK ROSHAN

body2022
JUDGMENT : Heard learned counsel for the parties. 2. This revision application is directed against the judgment dated 29.11.2003 passed by the learned Additional Sessions Judge-XIII, Dhanbad, in Criminal Appeal No.112/2000; whereby the judgment of conviction and order of sentence, both dated 5.8.2000, passed by the learned Judicial Magistrate, 1st Class, Dhanbad corresponding to G.R. No.2631/95; whereby the petitioner was convicted and sentenced to undergo R.I. for two years for the offence under Sections 379 IPC, R.I. for two years for the offence under Section 39 of the Indian Electricity Act and to undergo R.I. for two years for the offence under Section 44 of the Indian Electricity Act and all the sentences were directed to run concurrently, has been modified to the extent that the appellate court has affirmed the conviction but reduced the sentences awarded by the trial court to R.I. for one year under Section 39 of the Indian Electricity Act read with Section 379 IPC and R.I. for one year under Section 44 of the Indian Electricity Act and both the sentences were directed to run concurrently. 3. The prosecution case in short is that the informant Akhileshwar Pd. Gupta, Assistant Engineer in Electric Department along with a Magistrate and other witnesses raided the sweet shop of the petitioner and found the petitioner abstracting energy illegally from the main pole and seized 21 meters electrical wire in presence of the petitioner and copy of the seizure list was given to the him. On the basis of the written report, the instant case was registered and after investigation, police submitted charge-sheet. Accordingly, charges were framed against the accused person for which he pleaded not guilty and claimed to be tried and finally the he was convicted. 4. Mr. Biren Poddar, learned senior counsel for the petitioner assailed the impugned judgment on the ground that the prosecution launched by the Assistant Engineer was not in accordance with Section 50 of the Indian Electricity Act, 1910 (in short the Act hereinafter), inasmuch as, Section 50 of the Act clearly stipulates that any prosecution should be initiated either by the Government or by the Electrical Inspector but the Assistant Engineer steps in the shoes and filed the prosecution case. Learned senior counsel further contended that no any document has been produced / exhibited showing that the Government has empowered him for a particular case and/or for a particular period. Learned senior counsel further contended that no any document has been produced / exhibited showing that the Government has empowered him for a particular case and/or for a particular period. Had there been a case that the Assistant Engineer would have been empowered by the Government specifically as Electrical Inspector; in view of the Section 50 of the Act, the matter would have been different. But in the instant case neither any sanction order has been produced nor the law so permits. Mr. Poddar further referred the judgment passed in the case of Suleman Vs. State of M.P. (MANU/MP/0257/1979; and submits that the Madhya Pradesh High Court after discussing the judgment passed by the Hon’ble Supreme Court and Patna High Court has held that a prosecution for an offence of theft of electrical energy could only be launched as required under Section 50 of the Act at the instance of the Electrical Inspector or the Government. Learned senior counsel lastly submits that in view of the aforesaid facts, the judgment of conviction and order of sentence deserves to be quashed. 5. Mr. Prabir Chatterjee, learned Spl. P.P opposed the prayer of the petitioner and submits that Assistant Engineer has categorically stated in his cross-examination that he was having sanctioned to lodge the case. 6. Having heard learned counsel for the parties and after going through the impugned judgments including the LCR and also the provision of law it transpires that Section 50 of the Act stipulates that no prosecution shall be instituted against any person for any offence against the Act or any rule, licence or order thereunder, except at the instance of the Government (or a State Electricity Board) or an (Electrical Inspector) or of a person aggrieved by the same. In the instant case, admittedly; the prosecution case has been filed by the Assistant Engineer and not by the Electrical Inspector and admittedly; no sanction order has been produced before the Court of law. There is no document to suggest that the Assistant Engineer was empowered to lodge the case under Section 50 of the Act. 7. In the instant case, admittedly; the prosecution case has been filed by the Assistant Engineer and not by the Electrical Inspector and admittedly; no sanction order has been produced before the Court of law. There is no document to suggest that the Assistant Engineer was empowered to lodge the case under Section 50 of the Act. 7. From the impugned judgment, it transpires that the learned Appellate Court had misdirected itself by going through the deposition made in the cross-examination that the informant was empowered to launch the case but not even a single chit of paper has been produced / exhibited to show that the Assistant Engineer was empowered by the Government to launch the case. For brevity, relevant portion of the judgment passed by the learned Appellate Court is extracted as under:- “9. The learned defence counsel has argued before me that the prosecution case can not be lodged by the Assistant Engineer of the department as such the accused/appellant is entitled to be acquitted. I feel here pertinent to mention Section 50 of the Act which reads as follows:- “No prosecution shall be instituted against any person for any offence against the Act or any rule, licence or order thereunder, except at the instance of the Government (or a State Electricity Board) or an (Electrical Inspector), or of a person aggrieved by the same.” From bare perusal of the provision it is obvious that the prosecution can be lodged at the instance of Electrical Inspector or a person aggrieved by the same. Naturally the Assistant Engineer shall be deemed to be a person aggrieved as he himself stated in cross-examination that he has been authorized to file a case as such, the contention of the defense does not appear to be tenable. So far as the provision of law is concerned; which is quoted hereinabove, the law is very clear and there is no ambiguity. At the cost of repetition neither there was any document to suggest that the Assistant Engineer has been empowered to launch the case, nor the law so permits; as such the initiation of proceedings itself is not inconsonance with Section 50 of the Act. 8. At the cost of repetition neither there was any document to suggest that the Assistant Engineer has been empowered to launch the case, nor the law so permits; as such the initiation of proceedings itself is not inconsonance with Section 50 of the Act. 8. Consequently, the judgment dated 29.11.2003 passed by learned Additional Sessions Judge-XIII, Dhanbad, in Criminal Appeal No.112/2000; whereby the judgment of conviction and order of sentence dated 5.8.2000 passed by the learned Judicial Magistrate, 1st Class, Dhanbad corresponding to G.R. No.2631/95; has been partly affirmed, is hereby, quashed and set aside. 9. The petitioner shall be discharged from the liability of his bail bonds. 10. Accordingly, the instant criminal revision application, is hereby, allowed and disposed of. 11. Let a copy of this order be communicated to the court below and also to the petitioner through the officer-in-charge of concerned police station. 12. Let the lower court record be sent to the court concerned forthwith.