State Of (Delhi Administration) vs Dharam Pal
1980 Latest Caselaw 252 Del

JUDGMENT

Prithvi Raj, J.

1. The respondent was tried on a complaint filed under Section 39 of the Electricity Act read with Section 397 I.P.C. on the allegation that he had taken a temporary connection from a pole near Arya Samaj Mandir near Quarter No. 168- E, Dev Nagar, without a meter and thereby dishonestly consumed electrical energy. The trial court by its impugned judgment dated March 6, 1975. holding that the complaint filed by Shri K.L. Katyal, Zonal Superintedent, Zone No. 6, Karol Bagh Delhi, was not competent within the requirements of Section 50 of the Indian Electricity Act, 1910 (hereinafter the Act), and in that view of the matter dismissed the complaint and recorded acquittal of the respondent. The complainant feeling aggrieved has filed the present appeal.

1A, Section 50 of the Act reads as follows:

50. Institution of prosecutions.-No prosecution shall be instituted against any person for any offence against this Act or any rule, license or order there under, except at the instance of the Government or an Electrical Inspector, or of a person aggrieved by the same.

2. The question therefore that arises for consideration in this case is whether Shri Katyal was an aggrieved person or was acting at the instance of an aggrieved person. He certainly was not acting at the instance of the Government or an Electrical Inspector. When questioned about his capacity to file the complaint, he invited attention of the court to two orders, one of May 17, 1968, which was reiterated by a sub-sequent order of August 6, 1970, both issued by the General Manager of the Delhi Electric Supply Undertaking (herein DESU), By these orders, the General Manager laid down procedure to be followed in cases of theft of electricity. He required that as soon as theft of electric energy was suspected, discreet verification should be made by inspecting the premises to ascertain whether a prima facie case of stealing was there. Thereafter, raid should be conducted by the district staff with the help of the local police and photographer under the guidance of the competent officer of the rank of Zonal Superintendent A. E. After conducting the raid, a report should be lodged with the police under Section 379, I.P.C. read with Section 39 of the Act. Further in order that price of the stolen energy may be recovered, the General Manager required that the details of the theft should be reported to him where in his office the quantum of energy would be assessed and necessary steps for the recovery of the amount with his permission would be taken. The statement of Shri Katyal shows that he was acting at the instance of the General Manager in pursuance of the aforesaid circular. According to the Municipal Corporation Act (herein the Corporation Act), distribution of electricity in Delhi is a function performed by the DESU, Section 53 of the Corporation Act prescribes the functions of the Delhi Electric Supply Committee and envisages that this Committee shall be responsible for the conduct and management of the DESU and for the efficient discharge of such responsibilities shall exercise such powers and perform such functions as are conferred or imposed by or under the Corporation Act. The executive powers for the purpose of carrying out the provisions of the Act pertaining to DESU vest in the General Manager (Electricity), as prescribed by Section 64 of the Corporation Act. We, therefore, have no hesitation in holding that the General Manager (Electricity) is one of the aggrieved persons as far as the theft of electricity supplied by DESU is concerned.

3. Further, Sub-section (1) of Section 476 of the Corporation Act read with Sub-section (2) thereof, shows that the General Manager of the DESU was competent to take legal proceedings in respect of any offence against the Act. Shri Katyal while acting in pursuance of the general orders issued by the General Manager, was therefore acting at the instance of the General Manager. Section 50 of the Act does not require sanction or consent of the aggrieved person, but it is sufficient if the prosecution is instiltuted at the instance of the aggrieved person. Any person acting in pursuance of the general circular issued by the General Manager laying down the procedure how to deal with the prosecution with regard to theft of electric energy will therefore be acting at the instance of the General Manager, who, as said before, is definitely an aggrieved person. The trial court has no doubt relied upon Ram Chandra Prasad Sharma v. State of Bihar but failed to appreciate the ratio thereof correctly. In that case, the Punjab Electricity Supply Co., who was held to be the person aggrieved, had given a general power of attorney to one Ramaswamy to act on behalf of the company in all legal proceedings. One Bhattacharya lodged the report with the police at the instance of Ramaswamy. It was held that Bhattacharya's having lodged the first information report was sufficient compliance of the provisions of Section 50. In the instant case, Shri Katyal, the Zonal Superintendent, instituted the prosecution at the instance of the General Manager and therefore it could not be held that there has been any violation of Section 50.

4. That being so, the second contention of Shri Sinha is also without any merit. He had contended that the complaint was filed by Shri Katyal in his individual capacity and not at the instance of the General Manager, because the heading of the complaint stated Shri Katyal, Zonal Superintendent, Zone No. 6, Karol Bagh, Delhi, to be the complainant. Besides, in the body of the complaint Shri Katyal has nowhere stated that the complaint was being filed at the instance of the General Manager. As we have already discussed that the requirement of law is satisfied if the prosecution is instituted at the instance of the aggrieved person, it was not therefore necessary to mention in the complaint that Shri Katyal was doing so at the instance of the General Manager. It has been proved by producing the two circulars before the court that he was acting at the instance of the General Manger in virtue of a general authorisation. Therefore Shri Katyal was by no stretch of imagination, acting in his personal capacity. In para 8, he has clearly stated that he was a public servant and it may not be possible for him to attend the court on every date of hearing and accordingly sought exemption from personal appearance. He was filing the complaint as a public servant and not in his personal capacity. In fact, it is the complaint by the Zonal Superintendent of the Zone and Shri Katyal has given his name to indicate that at the relevant time he was the Zonal Superintendent.

5. Equally meritless is the submission of Shri Sinha that the court should take no notice of the circulars unless they were proved. The circulars are copies of public documents within the meaning of Section 74 of the Evidence Act and no' oral evidence was required to prove them.

6. We accordingly accept this appeal and set aside the impugned order.

7. At this stage, Shri Sinha submitted that the parties had led evidence on merits as well and instead of remanding the case to the trial court for disposal on merits, it would be appropriate that this Court should go into the evidence and decide the case on merits as well. His precise submission is that the case is pending for the last 5 years and the respondent has undergone the agony of facing a protracted trial, it would prolong the agony by remanding the case. Shri I.U. Khan has no objection to this Court going into the evidence and deciding the case on merits.

8. Having gone through the evidence on record, we are satisfied that the prosecution has succeeded in proving its allegation that the respondent had unauthorisedly connected V.I.R. wire with the mains of the electricity board and thus consumed electricity without obtaining a proper meter. We accordingly convict the respondent under Section 39 of the Act read with Section 379, I.P.C. It is no doubt true that the act of obtaining electricity in a stealthy manner that was resorted to by the respondent is a wrongful act, but at the same time the respondent has remained on bail throughout the trial. The appeal has come up before us after a lapse of 5 years. We would not consider it prudent to send the respondent to jail at this stage. We instead of sentencing him to imprisonment, sentence him to a fine of Rs. 200.00 only to be paid within a fortnight, failing which the respondent shall undergo simple imprisonment for 2 months. The fine shall be deposited in the court of the Chief Metropolitan Magistrate, Delhi, within the time already allowed.