Shiv Sahay Singh vs The State Of U.P And Another
2013 Latest Caselaw 5118 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No.17
 
					     AFR
 
                                                               	 Reserved         
 
        Criminal Misc. Case No. 746 of 2011
 
                                     (U/s 482 Cr.P.C.)
 
Shiv Sahay Singh, aged about 49 years, son of Chandra Bhan Singh, resident of village Sajanpur, Police Station Akhand Nagar,District Sultanpur        .....................Petitioner
 
                                        Versus
 
1.State of U.P
 
2.    Shri Jang Bahadur, Inspector,Prabhari Parvartan Dal (Electric  Department) Faizabad	 ............Opposite Parties
 
                                         AND 
 
 2.  Criminal Misc. Case No. 747 of 2011 (U/s 482 Cr.P.C.)
 
Chandra Bhan Singh, aged about 80 years, son of Late Shri Buddhu Singh, resident of village Sajanpur, Police Station Akhand Nagar, District Sultanpur		                                       .....................Petitioner
 
                                        Versus
 
1.     State of U.P
 
2.  Shri Jang Bahadur, Inspector,Prabhari Parvartan Dal (Electric           Department) Faizabad	............Opposite Parties
 
Counsel for the petitioners     : Shri   Anil Kumar   Singh 			           Visen
 
Counsel for the opposite parties : Govt.Advocate,  Shri A 				S Rakhara        
 
                                    *** 
 
Hon'ble Vishnu Chandra Gupta,J.

Judgement

These two petitions under sections 482 Code of Criminal Procedure (hereinafter referred to as ''Cr.P.C'') have been filed in connection with same case arising out of one raid and on the basis of First information Report (For short ''FIR') lodged against the petitioners under section 135 of Electricity Act (herein after referred to as the 'Act') on 9.1.2010. Hence both these petitions are taken up together .

The questions of facts and law involved in both these petitions are almost similar, hence they are being disposed of by this common judgement.

By means of petition no. 746 of 2011 (U/s 482 Cr.P.C.) the petitioner Shiv Sahay has prayed for quashing the FIR dated 9.1.2010 arising out of case crime no. 7 of 2010 under section 135 Electricity Act, charge-sheet dated 1.2.2010 and summoning order dated 6.9.2010 and order dated 3.12.2010 passed by Special Judge (E.C.Act), Room No. 9, Sultanur in Criminal Case No. 13 of 2010.

By means of petition no. 747 of 2011 (U/s 482 Cr.P.C.) the petitioner Chandra Bhan Singh has prayed for quashing FIR dated 9.1.2010 arising out of case crime no. 8 of 2010 under section 135 Electricity Act, charge-sheet dated 1.2.2010 and summoning order 3.12.2010 passed by Special Judge (E.C.Act), Room No.9, Sultanpur in Criminal Case No. 19 of 2010

The factual matrix, in brief is that on 8.1.2010 the opposite party no.2 Jang Bahadur, Incharge of Enforcement Team, Faizabad along with members of team including Junior Engineer Rajiv Kumar Yadav, Sub Inspector Radhey Shyam and constable Ram Kumar raided the work place of the petitioners, situated in village Sajanpur, P.S. Akhandnagar, District Sultanpur. The Raiding party found three electric motors which were used for running rice mill, floor mill, and sugar crusher.

At same time on the same day in the same premises the rice mill was being operated by the electric motor of 20 HP . The petitioner Shiv Sahay was running the rice mill. One electric metre was installed in the premises and one more metre was also installed on a pole at considerable height . On demand being made by the raiding party the petitioners produced the paper of electric connection having No.3301/133094 of 10.5 HP. An industrial electricity metre installed in the premises having no. SIG 0270 was attached with the motor whose MD was ranging in between 2-96 KB which shows that there is difference of sanctioned load and attached load with motor. As such, it is a case of excessive load.

At same time on the same day in the same premises floor mill was also running through tapping with LT line and connecting with cable directly to electric motor of 15 HP. This floor mill was being run by petitioner Chandra Bhan Singh. The petitioner failed to show any authority to take electric connection by tapping. Hence it was found to be a case of theft of electricity covered under section 135 of the Act. Cable used for tapping with LT line and 15 HP motor by which the floor mill was being run was seized and taken in custody by the raiding party along with the two cables of three face having length of five metres after disconnecting the electricity supply .

In the same premises at same time on the same day the sugar crusher was also found to be in operation by tapping with L.T line after directly connecting cable with motor of 20 HP. The sugar crusher was also being run by the labours of the petitioner Shiv Sahay. The sugar cane of farmers was being crushed on payment basis . There were no papers of this connection and the petitioner failed to show the authority to use the electricity directly taking from tapping LT line. Hence, this case was also found to be of electricity theft covered by section 135 of the Act. The raiding party also seized the cable motor and other items, which were used for tapping with LT line . The motor could not be taken into possession as it was attached with iron bolt. The Electricity supply was disconnected.

The petitioners were asked to deposit compounding fee, for which they sought time. One day's time was given to them.

When the petitioners failed to deposit the compounding fee, the FIR was lodged on 9.1.2010 against them. Recovery memo was prepared on spot along with inspection note. After investigation of the case, the police submitted charge-sheet against the petitioners under section 135 of the Act. The magistrate after taking cognizance of the offence issued process against the petitioner.

Aggrieved by the proceedings before Special Court these petitions were filed to quash the FIR, Charge Sheet and the summoning order.

Pleadings have already been exchanged.

Heard learned counsel for the petitioners, learned AGA and the learned counsel for the opposite party no. 2.

It has been contended by the learned counsel for the petitioners that section 135 of the Act will not come into play in this case as this case is of excessive load and does not fall within the ambit of electricity theft , hence at the most civil liability could be fastened in view of section 126 of the Act. The prosecution under section 135 of the Act is an abuse of process of law and is liable to be quashed. He relied upon judgement of Hon'ble Supreme Court in Executive Engineer and another Vs. M/s Sri Seetaram Rice Mill, 2012 AIR SCW 516.

In Seetaram's case (supra), the Apex Court has held that section 126 of 2003 of the Act would be applicable to the cases where there is no theft of electricity but the electricity is being consumed in violation of the terms and conditions of supply leading to malpractices which may squarely fall within the expression ''unauthorized use of electricity'.

Learned counsel for the opposite party no.2 did not dispute the above proposition of law. Hence so far as the matter relating to the rice mill is concerned, it would fall within the ambit of section 126 of the Act.

The learned counsel for the opposite party no. 2 submitted that so far as the matter relating to the rice mill is concerned, it is covered under section 126 of the Act, as it is a case of excessive load as held in Seetaram's case (supra). So far as the case of floor mill and sugar crusher is concerned, it is squarely covered under Section 135 of the Act being the case of theft of electricity as defined under the Electricity Act

Admittedly the floor mill and sugar crusher are being run by tapping with LT line through electric motor directly. Certainly it comes within the ambit of theft of electricity and the case is covered under section 135 of the Act. In view of this, it cannot be said that no case is made out against the petitioners under section 135 of the Act.

My attention has also been drawn by learned Counsel for the petitioners towards the provisions of section 135 (1)(A) of the Act; wherein it is provided that in the case of theft of electricity, the supply of electricity should be disconnected immediately. But in this case supply of electricity has not been disconnected.

Learned counsel for the opposite party no. 2 has contended that so far as the case of floor mill and sugar crusher is concerned, the case is covered under section 135 of the Act because the electricity was being taken by tapping L.T. line. In both cases connecting cable and other equipments used to supply of electricity were seized after disconnecting the tapping line. Hence there is no violation of the aforesaid provision in this case.

I find force in the submission of the learned counsel for the opposite party no.2. Offence under section 135 of the Act applies only in respect of floor mill and sugar crusher, for which the electricity supply was disconnected, hence there is no violation of the provisions of law in this case.

It was further pointed out by the learned counsel for the opposite party no. 2 that the petitioner filed a writ petition bearing no. 420 of 2010 (M/B) for quashing the FIR, which has been dismissed by the Division Bench of this Court vide order dated 8.8.2011.

It has been contended by the learned counsel for the opposite party no. 2 that after dismissal of writ petition the petitioners cannot seek relief for quashing of the FIR in the proceeding under section 482 Cr.P.C.

The court dismissed the petition on the ground that no good reason for quashing the FIR existed. Hence this Court is of the view that same relief which has been once declined by a competent Court cannot be re-agitated in the present petition and the relief sought for quashing the FIR cannot be granted to the petitioners..

Learned counsel for the petitioners next contended that the inspection made by the raiding party was not in accordance with law, hence no liability could be fastened upon the petitioners on the basis of such raid.

The first limb of the argument in this regard is that in terms of G.O. dated 5.10.2004 annexed as annexure no.-8 to this petition, the raid could not be conducted by the officer below the rank of Assistant Engineer/SDO or Deputy Superintendent of Police posted in Vigilance Cell. But in this case the raid has been conducted by the officer below the rank of the Assistant Engineer/SDO and Deputy Superintendent of Police posted in Vigilance Cell.

This allegation has been refuted by the learned counsel for the opposite party no. 2 showing the amended GO dated 3.1.2008, which has been annexed as Annexure no. 1 to the counter affidavit. The notification of 5th October, 2004 has been amended by means of G.O. Dated 3.1.2008, in which it has been provided that raid should be conducted by the Junior Engineer or the officer higher in rank to Junior Engineer or Inspector of Police, Vigilance Cell, U.P. (Power Corporation) or the officer higher in rank to police Inspector. Admittedly this raid was arranged after 3.1.2008. Hence, in view of the above, I find no force in the argument of the learned counsel for the petitioners. Therefore, at this stage it could not be said that raid has been conducted by incompetent officer.

Second limb of argument of the learned counsel for the petitioners is that no report of inspection was prepared on spot nor has been given to the petitioners by the raiding party. Hence the inspection report of raiding party cannot be used against the petitioners.

Learned counsel for the petitioners has also drawn attention of this Court towards the provisions of Electricity Code( hereinafter referred to as 'Code' ) contained in para 8.1 which provides that in case the occupant of premises or the person present at the time of inspection refuses to receive the copy of the inspection note prepared on spot, the same shall be pasted at a conspicuous place in/outside the premises and photographed. But this procedure has not been followed by the raiding party.

It has been further contended by the learned counsel for the opposite party no. 2 that non compliance of the electricity code contained in para 8.1 regarding pasting of report in case of refusal and taking photograph thereof is mere irregularity , but it would not vitiate the whole proceedings of conducting raid. It is also contended that such irregularity should have been seen in the light of provisions contained in Cr.P.C.. The provisions of section 461 to 464 Cr.P.C. describe irregularities effecting the proceeding. This type of irregularity does not fall within the ambit of sections 461 of Cr.P.C.. Hence on this score, the prosecution cannot be thrown out at the very outset specially at the stage when the matter is before this court under section 482 Cr.P.C.

Learned counsel for the petitioners emphasized on this score by citing several authorities, which are mentioned here in under:-

1. Smt. Vimla Tiwari Vs. State of U.P., 2012 (6) ADJ 678.

2. M/s Venus Stone Crushing Co. and another Vs. U.P. Power Corporation Ltd. And others ,2012 (8) ADJ 221,

3. Ashok Kumar and others Vs. State of U.P. and others, 2008 (6) ADJ 660 (DB).

4. Dharmveer Singh Vs. State of U.P. and others, 2012 (8) ADJ 104 (DB).

After relying upon the aforesaid authorities it has been submitted by the learned counsel for the petitioners that non compliance of the provisions of Electricity Code will vitiate the process of assessment.

It would be suffice to say that the cases referred herein above i.e. Smt. Vimla Tiwari (supra), M/s Venus Stone Crushing Co. and another (supra) and Ashok Kumar and others (supra) are not related to the criminal prosecution but they are related to assessment for fixing civil liability under section 126 read with section 127 of the Act. Therefore, these authorities cannot at this stage be applied to quash the criminal prosecution launched against the petitioners.

It is well settled proposition of law that when any irregularity is pointed out in criminal prosecution, it should be tested on the basis of doctrine of prejudice. In judging a question of prejudice the court must act with a broad vision and look to the substance and not to technicalities as held by the Apex Court in the following cases:-

1. Janki Nath Sarangi Vs. State of Orissa (1969) 3 SCC 392,

2. State of U.P. Vs. and Shatrughanlal (1998) 6 SCC 651,

3. State of Andhra Pradesh Vs. Thakkidram Reddy (1998) 6 SCC 554,

4. Devotoshpal Chaudhary Vs. Punjab National Bank (2002) 8 SCC , 68.

Here in this case non compliance of pasting the report in case of refusal would not appear to be mandatory provision resulting into vitiation of entire criminal prosecution. Hence this Court is of the view that at this stage non compliance of electricity code as stated above could not be treated as the ground of quashing of the entire prosecution launched against the petitioners.

The petitioners have also challenged the order of final assessment on the ground that fair opportunity of hearing has not been afforded to them. Hence the proceedings are liable to be quashed.

Learned counsel for the opposite party no. 2 alleged that proceedings of assessment cannot be assailed in these petitions as there is specific provision for challenging these proceedings as provided in the Electricity Act and Electricity Code. The petitioners may take recourse of those remedies. I find sufficient force in the submissions of the learned counsel for the opposite party no.2.

The validity of assessment under sections 126 of the Act cannot be assailed in these proceeding. So far as fixation of civil liability and assessment is concerned, Assessing Authorities are not the court subordinate to this court. Hence while exercising the jurisdiction under section 482 Cr.P.C this court cannot look into the validity of assessment made in the light of section 126 of the Act.

In respect of cases of electricity theft, specific provision has been introduced by way of Amendment Act of 2007. By this amendment special Courts were constituted for trial of the case under section 135 of the Act. Special Judge was also empowered to fix the civil liability, for which section 154 (5) of the Act has been introduced. No such proceeding is under challenge in this case. Hence no interference is warranted by this Court in the case of assessment made by the authorities in light of the provisions contained in section 126 of the Act.

Learned counsel for the petitioners has also relied upon the judgements reported in Manoj Narain Agrawal Vs. Shashi Agrawal and others 2009 (2) JIC 455 (SC), Manoj Mahavir Prasad Khaitan Vs. Ram Goptal Poddar and another and S. Lhushboo Vs. Kanniammal and another 2010 (2) JIC 538 SC in respect of quashing of the proceeding on the ground of malafides and submitted that these proceedings are the result of malafides as the officers of the department were wanting illegal gratification from the petitioners. When the petitioners did not accept the demand made by them, they made fictitious documents of inspection against the petitioners and falsely implicated them in this case. It was further submitted that malice shall be presumed in this case in the light of non compliance of the provisions of the Electricity Code.

The learned counsel for the petitioners has also relied upon the judgement of Full Bench of this Court reported in 2006 (24) LCD 480, Swami Prasad Maurya Vs. Speaker. Legislative Assembly U.P. and others and contended that in the present factual matrix of the case the present case is case of malice in law and when the malice in law is there, the criminal prosecution would vitiate being abuse of process of Court.

The provisions which are said to have been violated are relating to give copy of the inspection note. It has been submitted that no such inspection was ever made. In the alternative it has been contended by the learned counsel for the petitioner that there is no endorsement of receipt of inspection note.

As earlier held that in case of refusal of receiving inspection note by the occupier or person present at the time of inspection the provisions contained in para 8.1 of Electricity Code come into play but the same are not mandatory. They are directory in nature. Unless it is shown by the petitioners that prejudice has been caused to them resulting into miscarriage of justice, the benefit of irregularity cannot be extended to the accused.

Moreover,It is well settled that malice should be proved like a fact unless there is a case of malice in law. This case is not covered under malice in law as malice is attributed of non fulfilment of illegal gratification raised by raiding party and consequently creation of fictitious inspection note, hence it ought to have been proved by the petitioners like any other fact by adducing evidence and only thereafter decision can be taken. These factual aspects which are not admitted in between the parties, cannot be looked into by this Court while exercising the jurisdiction under section 482 of the Cr. P.C.

The Apex court has cautioned the High Courts that while exercising jurisdiction under section 482 Cr.P.C. The inherent powers should be used very sparingly and that too to prevent abuse of process of any court or to give effect to any order passed under the Code of Criminal procedure or otherwise to secure the ends of justice. This court is of the opinion that the petitioners have failed to establish that quashing of the aforesaid proceeding is necessary to secure the ends of justice or to prevent abuse of process of law.

After considering the submissions at bar, going through the citation relied upon by the parties and the discussion made hereinabove, this court is of the considered view that these petitions sans merit and deserve to be dismissed.

Consequently, both petitions are dismissed.

GSY

Dated: 20th August 2013