Sohan Lal Kashyap vs Delhi State And Anr.
2002 Latest Caselaw 351 Del

JUDGMENT

S.K. Agarwal, J.

1. This is second application under Section 438 of the Code of Criminal Procedure (for short, 'Cr.P.C.') for grant of pre-arrest bail in the case FIR No. 549/2001, under Section 379 IPC and Sections 39/44 I.E. Act, P.S. Sangam Vihar. The allegations are of direct theft, by-passing the single point delivery meter having sanctioned load of 600 KW.

2. By order dated 21st November, 2001, passed in Crl.M.(M). No. 4066/2001, petitioner's first application for grant of anticipatory bail, in the above-noted case, was declined observing:-

"This is a petition under Section 438 Cr.P.C. for grant of anticipatory bail in the case FIR No. 549/2001 under Sections 379 IPC & 39/44 I.E. Act P.S. Sangam Vihar.

It is alleged that on 14th September, 2001 on receipt of the complaint from the residents regarding theft of electricity by the petitioner Secretary of a society "Awasiya Samajik Sudhar Samiti" a joint team comprising officials of DVB and the police raided the single point delivery connection/Sub Station at Sangam Vihar, Block L-1, Gali No. 1. Sh. B.D. Joshi was called at the spot. Lock of Sub-Station was got opened and on inspection it was found that LT PT point by-passed and DVB supply found directly connected to the outgoing side of LT-PT with the help of naked copper wire; photographs were taken; the meters were sealed and the raid report was prepared. The jumpers were removed and a copper wire through which the direct theft was committed were got removed and a seizure memo was prepared. On the basis of report lodged by the DVB Officials the above noted FIR was registered.

I have heard the learned counsel for the parties and learned APP for the State. Leaned counsel for the petitioner submits that a society was formed sometimes in the year 1989; that the petitioner is a Secretary of the society, and that there was an agreement between the society and the DVB regarding the one point supply of electricity to about six hundred jhuggi dwellers; that the petitioner has deposited money as per the bill received from time to time; that in terms of agreement the DVB raised illegal bills of about Rs. one crore which the society was unable to pay. The dispute was raised and petition before the High Court was filed for appointment of the Arbitrator which is pending. It is further argued that petitioner being the secretary of the Society is only one of the signatories of the cheque which used to be deposited in the name of DVB from time to time and other signatories were President and the Treasurer whose jobs were to make collections. Learned counsel further submits that petitioner has already participated in the investigations and, therefore, he is entitled to be released on bail. Learned counsel for State on the other hand has argued that Rs. 1,33,818/- and Rs. 165818/- were deposited in cash by the petitioner himself to the DVB and the bills were raised in the name of the petitioner alone who is stated to be Secretary of the Society for the last 4 years. It is argued that custodial interrogation of the petitioner required for purposes of further investigations.

I have considered the rival contentions. Taking into consideration the gravity of the offence and nature of allegations particularly when he is the Secretary of the Society for the last four years; the Electricity Bills were used to be issued in his name and cash payments were being deposited by him, no case of anticipatory bail is made out.

Dismissed."

3. Petitioner did not surrender. However, on 28th January, 2002, he filed a petition under Section 482 Cr.P.C. seeking quashing of the above FIR and the proceedings arising there from. In the said petition, there was no averment that petitioner had earlier filed an application for grant of pre-arrest bail which was dismissed by this Court. On 28th January, 2002, on oral prayer for bail made by learned counsel for petitioner, notice was issued to the respondents for 7th February, 2002. On 7th February, 2002, the petition for quashing of FIR was dismissed by Hon'ble Mr. Justice R.S. Sodhi holding:-

" Crl. M.(M) 294/2002:

Learned counsel submits that theft of electricity in this case accounts to Rs. 1,00,000. She further submits that, if at all there be a theft, there would be a large number of people involved and not the petitioner alone. She also submits that the petitioner was only one of the signatories to the agreement between Delhi Vidyut Board and the Society for supply of bulk electricity. She, therefore, submits that the F.I.R. and the proceedings emanating there from be quashed, as the F.I.R. does not spell out any offence against the petitioner.

I have heard learned counsel for the parties. I do not find any necessity to interfere.

Dismissed."

4. On the same day, i.e. 7th February, 2002, petitioner moved the second application for grant of pre-arrest bail. Notice of the application was issued by Hon'ble Mr. Justice R.S. Sodhi for 22nd February, 2002 was got preponed to 18th February, 2002. On 18th February, 2002, learned counsel for the respondents brought to the notice of the Court that petitioner's earlier application for anticipatory bail was dismissed by the coordinate Bench, whereupon the matter was transferred to this Court.

5. Learned counsel for petitioner, Ms. Rachna Joshi Issar submitted that second application for grant of anticipatory bail was not similar to the earlier application which was declined and is on different grounds. While referring to para 21 of the petition, she argued that there is an averment to the effect "that the petitioner has been unsuccessful in obtaining anticipatory bail till date because of the misleading statements made on behalf of DVB under the influence of Shri Paleram". It was further argued that assuming that there is some error on the part of petitioner, relief of anticipatory bail should not be denied to him, if he is otherwise entitled to the same on merits. It was submitted that petitioner is an ex-serviceman and has been falsely involved in the above case at the instance of one Paleram.

6. On merits, learned counsel for the petitioner argued tampering is impossible with high voltage wire connections (11 thousand volt ampere) except by the DVB functionaries themselves after switching off the electricity supply from the source; the planned raid was carried out at night in absence of petitioner who was away on his official duty; no other independent reliable member of the colony was kept present because the tampering of high tension wires was to be done by the DVB men who can handle such a risky operation and the petitioner could not do it on his own; the lock of the meter room was broken open and falsely stated as got opened as the key of the meter room was with the colony people but as the whole operation was done secretly and surreptitiously the key was not obtained; the photographs taken to show that naked copper wires were pulled out from meter and connected to supply lines by-passing the meter wire by the said DVB official's usual and trusted photographer on whom they can rely to support them in such shady operations; the said DVB officials have got issued to the petitioner a false electricity consumption bill of nearly rupees one crore, so that, if bail is refused, he may remain in Jail for a very long period as he will not be able to deposit one fourth of that colossal amount to get bail; the said DVB officials are taking undue interest in seeing that the petitioner does not get anticipatory bail by using dilatory and unfair tactics in getting this petition transferred from one court to another; she argued that it is preposterous on the part of the said colluding DVB officials to get a bill of rupees nearly one crore issued to the petitioner for alleged theft of electricity in a small tin shed and that his normal monthly consumption of electricity is only a few rupees.

7. Learned counsel for petitioner further argued that the accusations against the petitioner are mala fide ex facie because as per the meter reading for the period from 7th August, 2001 to 15th September, 2001 (i.e. during the subsistence of agreement between DVB and the ASSS through its General Secretary, the consumption was 8.84 units per consumer per day whereas as per the bill sent after the termination of the said agreement for the period from 21st September, 2001 to 5th December, 2001 is 5.85 units per consumer per day. She further argued that as per the latest bill, a fresh connection has been issued in the name of Satpal Singh, a contractor and there are no arrears payable by the society and, therefore, the petitioner on this ground is entitled to be released on bail. Relying on the observations made by the Supreme Court in Gurbaksh Singh Sibbia etc. v. State of Punjab, learned counsel argued that petitioner is a law abiding citizen, his liberty is at stake; he has already participated and co-operated in the investigation while he was granted protection before dismissal of his earlier application, therefore, he is entitled to pre-arrest bail.

8. Learned counsel for the respondents, opposing the petition raised a preliminary objection that petitioner has deliberately made a false statement and concerned material facts that no similar petition was filed before this Court or any other Court for the similar relief. It was submitted that petitioner is guilty of abusing the process of the Court and that even otherwise there is no change in the circumstances warranting fresh application for grant of pre-arrest bail. It was also explained that the unit consumption per day when compared to the relevant previous period is much higher and, therefore, even prima facie, this cannot help the petitioner.

9. I have considered the rival contentions and have been taken through the record. Admittedly, raid was conducted on the complaint lodged by the residents of the locality to the Chairman, DVB. Executive Engineer (Enforcement) DVB was ordered for action. The raiding party consisted of several DVB officials; police force (CISF) headed by ASI Shri Pratap Singh and a photographer from M/s. Prakash Studio of Khanpur. Report was lodged after the raid. I have seen the photographs which were taken at spot. The matter is being investigated by the police. The arguments raised by the petitioner cannot be appreciated at this stage. Petitioner's first anticipatory bail application was dismissed by a detailed order on merits on 21st November, 2001, which fact was deliberately concealed in the subsequent petition filed by him. The petitioner at page 10 of the petition has pleaded as under:-

"No similar petition has been filed before this Hon'ble Court or any other Court praying for similar relief."

10. The petitioner neither challenged the order dated 21st November, 2001 not surrendered. He moved a petition for quashing of FIR after two months but deliberately concealed the factum of dismissal of his anticipatory bail application by this Court. Even in this petition, he has made false statement on oath that no similar petition was filed before this Court. The conduct of the petitioner is mala fide as there is an attempt to abuse the process of the Court. In view of the nature of allegations against the petitioner, particularly his conduct, no case for grant of anticipatory bail is made out and the petition is liable to be dismissed with costs. This view finds support from the Supreme Court decision in Mary Angel v. State of Tamil Nadu, .

11. For the foregoing reasons, the petition is dismissed with costs of rupees five thousand to be deposited within one month with the Delhi Legal Services Authority, in default SI for 15 days. However, looking into the nature of allegations, investigation of case be conducted by an officer not less than Inspector in the District Crime Cell (South).

12. Petition stands disposed of.