Delhi High Court
B.S.E.S. Rajdhani Power Ltd. vs Vijay Kumar Gupta & Anr. on 6 April, 2009
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.M.C. 3618/2008 & Crl M A 13493/08
Reserved on: March 27, 2009
Decision on: April 6, 2009
B.S.E.S.RAJDHANI POWER LTD. ..... Petitioner
Through: Mr.Sunil Fernandes with
Mr. Rajat Jariwal, Advocates.
versus
VIJAY KUMAR GUPTA & ANR. ..... Respondents
Through: Mr.S.K. Bhaduri with Mr. Vikas Sharma,
Advocate for R-1.
Mr. Pawan Behl and Mr. Jaideep Malik, APPs for State.
WITH
CRL.M.C. 421/2009 & Crl M A 1577/09
B.S.E.S.RAJDHANI POWER LTD. ..... Petitioner
Through: Mr.Sunil Fernandes with
Mr. Rajat Jariwal, Advocates.
versus
KALAWATI & ORS. ..... Respondents
Through: Mr.Deepak Pathak, Advocate.
Mr. Pawan Behl and Mr. Jaideep Malik, APPs for State.
WITH
CRL.M.C. 496/2009 & Crl M A 1858/09
B.S.E.S.RAJDHANI POWER LTD. ..... Petitioner
Through: Mr.Sunil Fernandes with
Mr. Rajat Jariwal, Advocates.
versus
VIJAY PAL SINGH & ORS. ..... Respondents
Through: Mr. Pawan Behl and
Mr. Jaideep Malik, APPs for State.
Respondent No.1 in person.
WITH
CRL.M.C. 422/2009 & Crl M A 1579/09
B.S.E.S.RAJDHANI POWER LTD. ..... Petitioner
Through: Mr.Sunil Fernandes with
Mr. Rajat Jariwal, Advocates.
versus
MANU DEVI & ORS. ..... Respondents
Through: Mr. Pawan Behl and
Mr. Jaideep Malik, APPs for State.
Mr. L.D. Adlakha, Advocate for R-1 & R-2.
WITH
CRL.M.C. 423/2009 & Crl M A 1581/09
B.S.E.S.RAJDHANI POWER LTD. ..... Petitioner
Through: Mr.Sunil Fernandes with
Mr. Rajat Jariwal, Advocates.
versus
S.M.AZIJUDDIN HASAN & ANR. ..... Respondents
Through: Mr. Pawan Behl and
Mr. Jaideep Malik, APPs for State.
Mr. S. Qamar, Advocate for R-1.
CRL.M.C. 424/2009 & Crl M A 1583/09
B.S.E.S.RAJDHANI POWER LTD. ..... Petitioner
Through: Mr.Sunil Fernandes with
Mr. Rajat Jariwal, Advocates.
versus
VEERENDER YADAV & ANR. ..... Respondents
Through: Mr. Pawan Behl and
Mr. Jaideep Malik, APPs for State.
Mr. Kishan Nautiyal with
Mr. Dinesh Kumar, Advocates for R-1.
AND
CRL.M.C. 430/2009 & Crl M A 1621/09
B.S.E.S.RAJDHANI POWER LTD. ..... Petitioner
Through: Mr.Sunil Fernandes with
Mr. Rajat Jariwal, Advocates.
versus
SARITA ARORA & ANR. ..... Respondents
Through: Mr. Pawan Behl and
Mr. Jaideep Malik, APPs for State.
Mr.Puneet Parihar, Advocate for R-1.
CORAM:
HON'BLE DR. JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
J UDGMENT
06.04.2009
1. In each of these petitions by the BSES Rajdhani Power Ltd. („BRPL‟)
the challenge is to two sets of orders passed by the Special Court
(Additional Sessions Judge) under the Electricity Act 2003 („Act‟). These
orders were passed in the criminal complaints filed by the BRPL
consequent upon inspections carried out in various premises which
according to it revealed the commission of direct theft of electricity. While
by the impugned order dated 23rd January 2008 in Complaint Case No. 269
of 2008 titled "BRPL v. Vijay Kumar & Anr", the learned Special Court
has dismissed the complaint, in the impugned orders passed in each of the
other cases while rejecting the contention of the BRPL that it cannot be
asked to admit or deny the document produced by the respondent accused
at the stage prior to even framing of notice, the learned Special Court has
fixed a date for that exercise. In each of these petitions (other than Crl.MC
No. 3618 of 2008), this Court has while directing notice to issue, stayed the
impugned orders of the learned Special Court.
2. The Special Court has in the impugned orders held that it has the power
under Section 157 of the Act to recall the summoning order. It has further
held that since the complaint is before the Sessions Court, the accused has a
right of seeking discharge in terms of Section 227 of the Code of Criminal
Procedure 1973 („CrPC‟) which applies to a case triable before the Sessions
Judge. The Special Court has further held that the complainant BRPL can,
in terms of Section 294 CrPC, be asked to admit or deny the documents
produced by the accused even before the framing of notice and that the
refusal by the BRPL to do so can lead to an adverse inference being drawn
against it, including the acquittal/discharge of the accused .
3. The submission of Mr. Sunil Fernandes, learned counsel appearing for
the Petitioner is as follows:
(i) In terms of Section 153 to 157 of the Act, the Special Court
exercises the powers of a criminal court to which the provisions of the
CrPC apply except to the extent that an exception has been made in
the Act itself. Under Section 151 of the Act, as amended in 2007, the
Special Court can take cognizance of the offence under Section 135
read with 150 of the Act without the accused being committed to it for
trial.
(ii) Although under Section 153 (3) no person shall be qualified for
appointment as a judge of a Special Court unless he was, immediately
before such appointment an Additional District & Sessions Judge, the
power exercised by the Special Court under Section 154 is that of a
Magistrate dealing with a complaint under section 190 CrPC. In fact
under Section 154 (3) the Special Court may, notwithstanding
anything contained in Section 260 (1) or Section 262 CrPC, try the
offence under Section 135 to 139 in a summary way in accordance
with the procedure prescribed in the CrPC and the provisions of
Sections 263 to 265 CrPC, shall, so far as may be, apply to such trial.
If, in the course of the summary trial, the Special Court is of the view
that it is undesirable to try such case in summary way, it shall then
proceed with a case as a warrant case.
(iii) Although under Section 155 the Special Court exercises the
power of Court of Sessions, such powers are to be exercised in a
manner not inconsistent with the provisions of the Act, and therefore
the case under the Act shall still have to be tried either as a summary
trial or as a warrant case. The Special Court cannot invoke the powers
available to it when trying a sessions case and this includes Section
227 CrPC.
(iv) The power of review under Section 157 is limited to the orders
passed in the trial under Section 154 of the Act. In the light of the fact
that the provisions in the CrPC applies and there is no provision
therein permitting the Magistrate to recall a summoning order, the
power under Section 157 cannot be invoked to recall the summoning
order passed by the Special Court. Reference is made in this regard to
the decision in Adalat Prasad v. Rooplal Jindal 113(2004) DLT 356
(SC). It is submitted that in any event under Section 151 cognizance is
taken of the offence and therefore the proceedings are at the post-
cognisance stage when the Special Court proceeds in terms of
Sections 154 (3). At this stage the accused has no right to be heard
and cannot produce documents in his defence.
(iv) The stage at which the powers under Section 294 CrPC can be
invoked is the stage of trial after the stage of framing of notice. It
does not apply to a stage prior to the framing of notice as explained by
this Court in Dr. P. Das Gupta v. The State 2006 (3) JCC 1592. It is
only after the prosecution evidence has closed that the accused is
asked to produce the defence evidence. The accused can seek to
produce documents in his defence at that stage and the Court can then
ask the prosecution to admit or deny such documents.
(v) Finally it is submitted that the complainant would be willing to
abide by any timed schedule fixed by this Court on remand of the
cases to the Special Court so that the trial is completed at an early
date.
4. Learned counsel for the respondents on the other hand submitted that the
power under Section 157 of the Act is an exception to the provisions of
CrPC that govern a criminal court dealing with complaints under Section
190 CrPC. The judgment of the Supreme Court in Adalat Prasad is to no
avail since that would apply where the Court was exercising its powers
under the CrPC. It is submitted that the power under Section 157 is wide to
include the power to recall a summoning order particularly when the
Special Court finds there has been a deliberate suppression of material facts
or documents by the complainant. It is submitted that in all these cases the
BRPL has suppressed the fact that the respondent has been regularly paying
the electricity bills raised from time to time.
5. It is urged by Mr. Pawan Behl, learned APP that under Section 294 CrPC
the accused is entitled to produce the paid bill on the first date of
appearance and the failure to deny such document by the BRPL can be fatal
to the complaint itself. It can lead to an adverse inference being drawn
against the BRPL and consequent the discharge or acquittal of the accused.
Reliance is placed on the judgment of the learned Single Judge of this
Court in Madan Lal Singhal v. State (Delhi Administration) 1996 JCC
129 and the observations of the Supreme Court in Ruckmini Narvekar v.
Vijaya Salardekar 2009 (1) C.C. Cass (SC) 74. Mr. Jaideep Malik, learned
APP further submitted that the impugned orders of the learned Special
Court could also be justified with reference to Section 258 CrPC in terms
of which the criminal Court can for sufficient reasons drop the proceedings
and discharge the accused at any stage of the proceedings.
6. Mr. Adlakha, learned Counsel for one of the Respondents referred to
Section 44 of the Evidence Act and submitted that if the Court found that
the material evidence has been suppressed from the court, then without
anything more the Court can use its extraordinary powers to dismiss the
criminal complaint.
7. At this stage, it may be noted that Mr. Fernandes the learned counsel for
the petitioner BRPL expressed surprise at the vehement opposition to these
petitions by both the learned APPs, virtually supporting the case of the
accused. Both APPs however, submitted that they were only assisting the
court as law officers placing, what according to them was the correct legal
position. This court is not inclined to comment on this aspect since in any
event all the submissions have been considered by this court hereafter on
merits.
8. The principal question that arises is whether in a complaint case for the
offence under Section 135 of the Act the Special Court can, a stage even
prior to the framing of notice, require the complainant to admit or deny the
documents produced by the accused who appears pursuant to the summons
issued by the Special Court. The further question is whether upon refusal
by the complainant to undertake that exercise, an adverse inference can be
drawn against it.
9. In the first place, this Court wishes to examine the scope of the powers
of the Special Court under the Act. Under Section 153 (1) the Special Court
has to be presided over by a judge holding whose rank is not lower than
that of an Additional District and Sessions Judge. While under Section 155
of the Act the Special Court has all the powers available to a Sessions
Court, the said provision additionally uses the words "insofar as they are
not inconsistent with the provisions of this Act."
10. There are certain express departures in the Act from the provisions of
the CrPC. Section 151 of the Act, as amended in 2007, enables the Special
Court to take cognizance of any offence thereunder without the case being
committed to it. This is an exception because for the offence under certain
special statutes the complaint cannot be filed directly before the special
court without there being an order by the regular court committing the case
to it. Also, the offence under Section 135 of the Act is punishable with
imprisonment for a term which may extend to three years. Therefore, but
for the Act, the case would have to be tried as a warrant case. Under
Section 154 (3) of the Act, the Special Court proceeds with the case
initially as a summary trial and has the discretion at a subsequent stage to
convert it to a warrant case.
11. The Special Court takes cognizance of the offence under Section 151 of
the Act and proceeds to summon the accused. By the time the Special court
exercises its powers under Section 154 (3) of the Act to commence the trial
it is already at the post cognizance and post summoning stage. Section 154
(3) of the Act is an exception to CrPC as is evident from the non-obstante
clause at the beginning of that provision. However, only Section 260 (1)
and Section 262 CrPC are exempted. Sections 263 to 265 CrPC are
applicable. Section 262 deals with summary trial and states that in the trial
under that Chapter the procedure for the trial of summons case shall be
followed. Section 260 confers the power to try only petty cases involving
offences punishable with a term not exceeding two years. It was necessary
for the legislature to say that Section 260 would not apply to the trials
under Section 154 (3) because the offence under Section 135 is punishable
with imprisonment for a term up to three years. Under the first proviso to
Section 154 (3) it is possible for the Special Court from deviate such
summary procedure. It is expected to initially proceed with the case as a
summary trial. This explains why it has been stated that Sections 263 to
265 CrPC are in any way applicable. Later if the Special Court is of the
view that it is undesirable to try the case in a summary way, it can adopt the
procedure applicable to a warrant case. Thus Section 154 (3) of the Act
gives the Special Court some flexibility to adopt a hybrid procedure of a
summary trial and a warrant case under the CrPC.
12. Section 155 of the Act nevertheless stresses that the CrPC provisions
will apply to the functioning of the Special Court. However this is qualified
by the words "insofar as they are not inconsistent with the provisions of
this Act." Therefore even while it exercises the powers available to a Court
of Sessions, the Special Court has to still proceed with the case initially in a
summary way and later, if it so decides, as a warrant case, in terms of
Section 154 (3) of the Act. From the point of the accused he still is placed
in the same position as an accused in a summons trial or a warrant case. He
does not get to avail of the right available to an accused facing a Sessions
trial. In other words, the provision of Section 227 is not available to him to
be invoked. Even an accused facing a Sessions trial cannot produce
documents in his defence at the stage of charge as explained by the
decision of the three-judge bench of the Supreme Court in State of Orissa
v. Debendra Nath Padhi (2005) 1 SCC 568.
13. A perusal of Sections 245 read with Section 247 (which pertains to a
warrant case instituted otherwise than on a police report, and Section 254
(which pertains to the trial of a summons case), shows that the accused gets
a right to lead evidence only after the evidence for the prosecution, after
commencement of trial, has been completed. Section 254 (1) in fact talks of
the Magistrate at that stage hearing the accused and taking "all such
evidence as he produces in his defence." Section 294 can come into play
only at that stage as far as the documents produced by the accused are
concerned. Section 294 cannot be read independent of the above
provisions. The judgment of this Court in P. Das Gupta explains this
position.
14. The position as to the stage at which the accused can be heard in his
defence has been settled by the three-judge bench of the Supreme Court in
Adalat Prasad v. Rooplal Jindal,(2004) 7 SCC 338. The question that arose
for consideration was whether in a summons case, after cognisance was
taken by the trial court of the offence, the accused could go before the trial
court with an application and seek recall of the summoning order by
producing materials in his defence. This was answered in the negative by the
Supreme Court. It was held (SCC, p. 343):
"But after taking cognizance of the complaint and examining the
complainant and the witnesses if he is satisfied that there is sufficient
ground to proceed with the complaint he can issue process by way of
summons under Section 204 of the Code. Therefore, what is necessary
or a condition precedent for issuing process under Section 204 is the
satisfaction of the Magistrate either by examination of the
complainant and the witnesses or by the inquiry contemplated under
Section 202 that there is sufficient ground for proceeding with the
complaint hence issue the process under Section 204 of the Code. In
none of these stages the Code has provided for hearing the summoned
accused, for obvious reasons because this is only a preliminary stage
and the stage of hearing of the accused would only arise at a
subsequent stage provided for in the latter provision in the Code. It is
true as held by this Court in K.K.Mathew v. State of Kerala (1992) 1
SCC 117 that before issuance of summons the Magistrate should be
satisfied that there is sufficient ground for proceeding with the
complaint but that satisfaction is to be arrived at by the inquiry
conducted by him as contemplated under Sections 200 and 202, and
the only stage of dismissal of the complaint arises under Section
203 of the Code at which stage the accused has no role to play,
therefore, the question of the accused on receipt of summons
approaching the court and making an application for dismissal of
the complaint under Section 203 of the Code on a reconsideration
of the material available on record is impermissible because by
then Section 203 is already over and the Magistrate has proceeded
further to Section 204 stage." (emphasis supplied)
15. In the considered view of this Court the above decision is a complete
answer to two issues. First, it is an answer to the question whether the power
under Section 157 of the Act to recall an order passed under Section 154 of
the Act includes the power to recall a summoning order. As already noticed,
the Special Court takes cognisance of the offence in terms of Section 151 of
the Act and usually the summoning of the accused happens simultaneously.
There is no question of the Special Court beginning to exercise its powers in
the course of the trial in terms of Section 154 (3) of the Act without the
accused appearing before the Court in response to the summons. Therefore
the case before the Special Court is at the post cognisance and post-
summoning stage when the accused appears before it in response to the
summons and the Special Court has to invoke its powers under Section 154
to proceed with the case initially as a summary trial. The power under
Section 157 of the Act is limited to permitting recall of an order passed by
the Special Court under Section 154 Act and not to the order taking
cognisance and issuing summons. This is in conformity with the law
explained by the Supreme Court in Adalat Prasad. This Court too has in
Vardhman Properties Limited v. BSES Rajdhani Power Limited (decided
on 17th February 2009) held that the power under Section 157 cannot be
invoked to recall an order taking cognisance of the offence under Section
135 of the Act and issuing summons.
16. The decision in Adalat Prasad is also unambiguous on the point that
there is no question of the accused seeking to produce documents in his
defence at the first hearing when he appears before the Special Court in
response to the summons and to insist that an admission and denial of the
said documents must be ordered even before the stage of framing of notice.
The Special Court‟s attempt in the instant cases to distinguish Adalat Prasad
on the ground that the Special Court is a Sessions Court exercising powers
under Sections 227CrPC and therefore not bound by the limitation placed by
the said decision, is clearly misconceived.
17. As already noticed the Special Court‟s powers as a Sessions Court is
only to the extent that the exercise of such powers is not inconsistent with
the Act. While trying a case for the offence under Section 135 of the Act, the
Special Court has to perforce try it in a summary way to start with and later
may decide to switch over to the procedure for a warrant case. Therefore the
decision in Adalat Prasad squarely applies. Further, even Section 227 CrPC,
which is unique to Sessions trials, does not permit the accused to produce
documents in his defence at that stage. This legal position stands settled by
the decision of the three-judge bench of the Supreme Court in Debendra
Nath Padhi. Viewed from any angle therefore, the Special Court could not
have, at the stage prior to framing of notice, invoked Section 294 CrPC to
permit the accused to produce documents in his defence and compelled the
complainant to undertake an admission and denial of such document.
18. It is surprising that the Special Court at one place holds that the decision
in Debendra Nath Padhi does not apply since it pertained to a sessions trial
and yet it also seeks to distinguish Adalat Prasad on the ground that the
Special Court is a sessions court. For the reasons explained, it has erred in
this aspect. Further, it is plain that the Special Court has completely misread
the judgment of the Supreme Court in Hem Chand v. State of Jharkhand
(2008) 5 SCC 113 and has mistakenly proceeded on the footing that it
supports the proposition that an accused in a summons case can produce
documents in his defence even at the stage of charge. In fact, the said
decision, which follows the decision of the three-judge bench in Debendra
Nath Padhi, does the opposite. The appellant in Hem Chand was the
accused who contended that the documents produced by him along with his
application for discharge in a case under the Prevention of Corruption Act
1988 ought not to have been rejected by the Special Judge trying the case.
This contention was negatived by the Supreme Court and it was held (SCC,
p.116):
"The learned counsel for CBI is, thus, correct in his submission that
what has been refused to be looked into by the learned Special Judge
related to the documents filed by the appellant along with his
application for discharge. The court at the stage of framing charge
exercises a limited jurisdiction. It would only have to see as to
whether a prima facie case has been made out. Whether a case of
probable conviction for commission of an offence has been made out
on the basis of the materials found during investigation should be the
concern of the court. It, at that stage, would not delve deep into the
matter for the purpose of appreciation of evidence. It would ordinarily
not consider as to whether the accused would be able to establish his
defence, if any."
19. The decision of the learned Single Judge of this Court in Madan Lal
Singhal was delivered at a time when the authoritative pronouncements of
the Supreme Court had not been delivered. Not surprisingly therefore the
said decision does not cite any Supreme Court decision that supports its
conclusions and further seeks to distinguish the ones cited before that court.
The decision in Madan Lal Singhal also does not deal with a case under the
Act.
20. Reliance is placed by the counsel for the Respondents upon the judgment
in Rukmini Narvekar is also not apposite. After considering the judgment of
the three-Judge Bench in State of Orissa v. Debendra Nath Padhi, it was
observed by the Supreme Court in Rukmini Narvekar that "some very rare
and exceptional cases where some defence material when shown to the trial
court would convincingly demonstrate that the prosecution version is totally
absurd or preposterous, and in such very rare cases the defence material can
be looked into by the Court at the time of framing of the charges or taking
cognizance." In the first place, the Court was not dealing with a complaint
case. Further, the above observations by the two judge bench in Rukmini
Narvekar are not consistent with the law explained by the three-Judge
Bench in State of Orissa v. Debendra Nath Padhi. The Court in Debendra
Nath Padhi in para 21 (SCC) of its judgment only talked of the High Court
while exercising powers of quashing under Section 482 CrPC being able in a
"rare and exceptional case" to consider "unimpeachable evidence of sterling
quality," produced by the accused. Those observations clearly did not apply
to the trial court as is evident from the observations in (SCC) paras 22 and
27 of the same judgment.
21. In each of these cases, the complaint is based essentially on the
inspection report which according to the complainant discloses theft of
electricity. As far as the complainant is concerned, the material document is
the inspection report. What the accused have sought to do is to produce a
receipt showing the payment of the electricity bills from time to time. The
documents showing payment of the bills can hardly be said to explain away
the inspection report which shows the occurrence of theft of electricity.
Even the payment of theft bill will not obliterate the inspection report that
discloses theft of electricity. In other words the offence under Section 135 of
the Act would nevertheless remain notwithstanding the fact that the accused
may have cleared the electricity bill. The accused may at a later stage be
able to seek compounding of the offence, but this is not the same thing as
being entitled, even before the framing of notice to produce a document in
defence to seek complete acquittal/discharge. Certainly the Special Court
could not possibly have dismissed a complaint only because the receipt
showing payment of the electricity bill was not admitted or denied by the
complainant. The inspection report was nevertheless still on record and
could not have been overlooked by the Special Court. The invoking of
Section 294 CrPC was clearly misconceived.
22. This Court has in Vardhman Properties Limited v. BSES Rajdhani
Power Limited 157 (2009) DLT 636 observed that the power under Section
157 has to be used in exceptional cases. It cannot be invoked to recall the
summoning order passed by the Special Court that would be inconsistent
with the law as explained by the Supreme Court in Adalat Prasad. The
submission made on the basis of Section 44 of the Evidence Act also appears
to be misconceived. This Court is unable to appreciate how it can be said to
be relevant in the present context.
23. For all the above reasons it is held that Special Court erred in passing the
following impugned orders which accordingly are set aside in each of the
aforesaid cases as under:
1. Crl.M.C.3618/2008 -- order dated 23rd January 2008 passed in Complaint
Case No. 269/2008 titled "BRPL v. Vijay Kumar".
2. Crl.M.C. 421/2009 -- order dated 29th January 2009 passed in Complaint
No.171/2008 titled "BSES Rajdhani Power Ltd. v.
Kala Wati & Anr."
3. Crl.M.C.496/2009 -- order dated 10th February 2009, passed in Complaint
No.469/2008 titled "BSES Rajdhani Power Ltd. v.
Vijay Pal Singh & Ors."
4. Crl.M.C.422/2009 -- order dated 5th February 2009, passed in Complaint
No.480/2008 titled "BSES Rajdhani Power Ltd. v.
Manu Devi & Anr."
5. Crl.M.C.423/2009 -- order dated 4th February 2009, passed in Complaint
No.436/2008 titled "BSES Rajdhani Power Ltd. v.
S.M. Azijuddin Hasan."
6. Crl.M.C.424/2009 -- order dated 29th January 2009, passed in Complaint
No.226/2008 titled "BSES Rajdhani Power Ltd. v.
Veerender Yadav."
7. Crl.M.C.430/2009 -- order dated 28th January 2009, passed in Complaint
No.466/2008 titled "BSES Rajdhani Power Ltd. v.
Sarita Arora."
24. The aforesaid cases will now proceed before the trial court from the
stage they were at prior to the passing of the impugned orders. The Special
Court will strictly go by the procedure outlined under the Act, as explained
in this judgment. It will proceed to the stage of framing of notice. That may
be done within a period of four weeks from today and thereafter the
prosecution will be asked to close its evidence within a further period of
eight weeks. The accused can thereafter enter their defence and the matter
will proceed in accordance with law. In each of the aforesaid cases the
Special Court should endeavour to conclude and deliver a judgment within a
period of six months from today.
25. The petitions and the pending applications are disposed of.
S. MURALIDHAR, J.
APRIL 6, 2009
rk
