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2022 DIGILAW 372 (ALL)

Radhey Shyam Bharti v. State of U. P.

2022-03-14

SUBHASH VIDYARTHI

body2022
JUDGMENT : 1. Heard Ms. Pooja, Advocate, the learned counsel for the revisionist and the learned A.G.A. appearing for the State-respondent. 2. By means of the instant revision under Section 397/401 Cr.P.C., the revisionist has challenged the legality and validity of the order dated 21.09.2021 passed by the learned Special Judge, SC/ST (POA) Act, Sonebhadra in Criminal Misc. Case No. 194 of 2021 whereby the revisionist’s application under Section 156 (3) Cr.P.C. for issuing a direction for registration of an FIR, has been rejected. 3. On 28.07.2021, the revisionist had filed an application under Section 156 (3) Cr.P.C. alleging that he is a person belonging to the Scheduled Caste. He has let out some portion of his land to a mobile communication company which has installed a mobile tower on the land and has taken an electricity service connection for the same. The revisionist uses electricity for his domestic use from the service connection of the mobile company. The revisionist has let out a building constructed on another part of the said land to one Anuj Kumar for doing some work and electricity from the service connection of the mobile company is being used for that work also. 4. The revisionist has further alleged in the application under Section 156 (3) that some employees of the electricity department asked him not to use electricity from the service connection of the mobile communication company. The revisionist has alleged that the aforesaid employees asked for a sum of Rs.50,000/-for the electricity connection and the revisionist gave them the aforesaid amount in cash without taking any acknowledgement of receipt. After some time, the said persons visited the revisionist’s home again and they demanded a further sum of Rs. 25,000/-for the connection. When the revisionist denied that he would not give any amount in excess of the amount mentioned on the receipt, they abused and threatened him. When some other persons gathered there, they went away. 5. A copy of the aforesaid application under Section 156 (3) Cr.P.C. has been filed as Annexure No. 1 to the affidavit filed in support of the revision and the same is not accompanied by a copy of an affidavit filed in support of the application. In the affidavit filed before this Court also, there is no averment that the revisionist had filed an affidavit in support of the application under Section 156 (3) Cr.P.C. 6. In the affidavit filed before this Court also, there is no averment that the revisionist had filed an affidavit in support of the application under Section 156 (3) Cr.P.C. 6. The learned Special Judge called for a report from the Circle Office, Obra in respect of the petitioner’s application under Section 156 (3). The police reported that the revisionist had sent a letter dated 16.06.2021 through registered post upon which an enquiry was held. Upon enquiry, it transpired that the respondent Vivek Kumar was working as Sub-divisional Officer, Arvind Kumar was working as a Junior Engineer and Ashraf Ali was working as Technician Grade 2 cum Accountant in the Sub-divisional Office of U. P. Power Corporation Ltd. (hereinafter referred to as the ‘U.P.P.C.L.’) at Obra. Vivek Kumar, S.D.O. has since been transferred. U.P.P.C.L. was carrying out a special drive against power theft and as a part of the drive, a vigilance team of U.P.P.C.L. had carried out checking in the premises of the revisionist on 14-04-2021 and had found theft of electricity being committed by him. On 15.04.2021, Case Crime No. 386 of 2021 was registered against the revisionist under Section 135 of the Indian Electricity Act in Police Station Anti Power Theft, Obera. Earlier, in the year 2015 also, the revisionist was found committing theft of electricity and the then Junior Engineer had lodged Case Crime No. 35 of 22015 against the revisionist. Upon enquiry, prima facie the allegations levelled by the revisionist have not been found to be established and it appears that the revisionist has filed the complaint to put undue pressure on the respondents, who are the officials of U.P.P.C.L. 7. After considering the aforesaid report, on 21.09.2021 the learned Special Judge passed an order holding that it does not appear that the respondents have committed any cognizable offence and accordingly, the application under Section 156 (3) Cr.P.C. was rejected by the learned Special Judge. The revisionist has challenged the aforesaid order dated 21.09.2021 mainly on the ground that the report of the Circle Officer is wholly irrelevant for consideration of the enquiry contemplated under Section 156 (3) Cr.P.C. and the report is relevant only to the extent whether any FIR has been registered in respect of the alleged incident or not. 8. The revisionist has challenged the aforesaid order dated 21.09.2021 mainly on the ground that the report of the Circle Officer is wholly irrelevant for consideration of the enquiry contemplated under Section 156 (3) Cr.P.C. and the report is relevant only to the extent whether any FIR has been registered in respect of the alleged incident or not. 8. The submission of the learned counsel for the revisionist is that while considering an application under Section 156 (3) Cr.P.C., the court is duty bound to consider the averments as alleged in the application and if the same constitute any cognizable offence, the Court has to pass an order for registration of the case and investigation. 9. I have considered the submission of learned counsel for the revisionist and perused the record. 10. To understand the true purport of the provision under Section 156 (3) Cr.P.C., the same is being reproduced herein below: - “156. Police officer's power to investigate cognizable case. (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 proceeding 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 above-mentioned.” 11. In Pepsi Food Limited vs. Sub-Judicial Magistrate, 1998 (5) SCC 749 , the Hon’ble Supreme Court held as follows: - “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 12. In Maksud Saiyed vs. State of Gujarat, 2008 (5) SCC 668 , the Hon’ble Supreme Court held that “where a jurisdiction is exercised on a complaint petition filed in terms of Section 156 (3) Cr.P.C. or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind.” 13. The manner in which the Court has to exercise power under Section 156 (3) Cr.P.C. has been laid down in Priyanka Srivastava vs. State of U.P., 2015 (6) SCC 287, wherein the Hon’ble Supreme Court held that: “27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the Bank. We are absolutely conscious that the position does not matter, for nobody is above the law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. ... 29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. ... 29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same.” 14. In my considered opinion, the submission made on behalf of the revisionist, that the report of the police is wholly irrelevant for consideration of the enquiry contemplated under Section 156 (3) Cr.P.C. and the report is relevant only to the extent whether any FIR has been registered in respect of the alleged incident or not, is not acceptable in view of the law laid down by the Hon’ble Supreme Court in the above mentioned cases. The Magistrate has to apply his mind to the entire material before him in order to ascertain whether commission of any cognizable offence is prima facie made out so as to warrant trial of the opposite party and he cannot direct registration of an F.I.R. merely for the reason that the police report mentions that no F.I.R. has been registered previously. The learned Court below has rightly examined the allegations made in the complaint as also the facts mentioned in the police report to ascertain whether any cognizable offence is made out or not. 15. The further submission of the learned counsel for the revisionist, that while considering the application under Section 156 (3) Cr.P.C., the Court is duty bound to consider the averments as alleged in the application and if the same constitute any cognizable offence, the Court has to pass an order for registration of the case and investigation, is also without force and against the law laid down by the Hon’ble Supreme Court. The Magistrate has to carefully scrutinise the evidence brought on record and has to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused and in the present case, the learned Court below has rightly done so. 16. The Magistrate has to carefully scrutinise the evidence brought on record and has to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused and in the present case, the learned Court below has rightly done so. 16. In Priyanka Srivastava (Supra), the Hon’ble Supreme Court was pleased to further lay down that: - “30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. ... 35. A copy of the order passed by us be sent to the learned Chief Justices of all the High Courts by the Registry of this Court so that the High Courts would circulate the same amongst the learned Sessions Judges who, in turn, shall circulate it among the learned Magistrates so that they can remain more vigilant and diligent while exercising the power under Section 156(3) CrPC.” 17. As already mentioned above, neither a copy of the affidavit filed in support of the application has been annexed by the revisionist nor has he made any averment that an affidavit had been filed in support of the application under Section 156 (3) Cr.P.C. The omission of the complainant in filing an affidavit in spite of the mandate contained in Priyanka Srivastava (Supra) prima facie indicates that the complainant deliberately did not verify the allegations made in the complaint on oath. 18. 18. As per the averments made by the revisionist himself under Section 156 (3) Cr.P.C., he is using electricity from the service connection of a mobile communication company, which is a tenant of the complainant and he has also permitted the same to be used by his another tenant. 19. Section 135 of the Electricity Act, 2003 provides as follows: 135. Theft of electricity.- (1) Whoever, dishonestly,- (a) taps, makes or causes to be made any connection with overhead, underground or underwater lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be; or (b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or (c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or (d) uses electricity through a tampered meter; or (e) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both...” (emphasis supplied) 20. Electricity from the service connection taken by the mobile communication company for the purpose of operating the equipments installed in the mobile communication tower is not meant to be used for any other purpose and by any other person. From the averments made in the application under Section 156 (3) Cr.P.C. itself, prima facie it appears that the revisionist is wrongly consuming the electricity from the service connection of the mobile communication company without taking a service connection in his own name for his own use and he is also letting the electricity being used by the tenant - Anuj Kumar for some work, which act of the revisionist is illegal and it may amount to a punishable offence. 21. 21. As has come to light from the report submitted by the police to the Court, a Case Crime No. 35 of 2015 is pending against the revisionist for theft of power and another Case Crime No. 386 of 2021 has been lodged against him under Section 135 of the Indian Electricity Act in furtherance of a checking conducted by the vigilance team of UPPCL on 14.04.2021 as a part of a special drive against power theft. 22. Taking into consideration the aforesaid facts, the learned Magistrate came to a conclusion that it appears that the revisionist has filed the application under Section 156 (3) Cr.P.C., to put pressure on the officials of U.P.P.C.L. 23. It is settled law that the revisional powers of the High Court can only be exercised to prevent the abuse of the process of law and to secure the ends of justice. The process of law can be invoked by a principled and really aggrieved person who approaches the court with clean hands. The process of law cannot be allowed to be abused by a person who is facing trial for theft of Electricity and who himself avers such facts in his application under Section 156 (3) Cr.P.C., as indicate that he is guilty of committing theft of Electricity; by making baseless allegations against the officials of a Government Corporation without any supporting material or evidence. Apparently, the revisionist has filed that complaint in order to put a counter pressure on the officials for taking undue advantage in plural cases of theft of electricity lodged against the complainant. 24. Keeping in view the facts and circumstances of the case, I am of the considered opinion that the order dated 21.09.2021 passed by the learned Special Judge, under Section 156 (3) Cr.P.C. does not suffer from any legal infirmity so as to warrant interference by this Court in exercise of its discretionary power of revision. 25. The revision lacks merits and is, accordingly, dismissed.