Bses Rajdhani Power Ltd. vs State Nct Delhi & Anr.
2009 Latest Caselaw 328 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      Crl.L.P. No. 236/2008


%                               Judgment reserved on: December 12,2008
                                Judgment delivered on: 02.02. 2009


BSES RAJDHANI POWER LTD                         ...... Petitioner
                 Through: Mr. Sunil Fernandes, Advocate

                      versus


State NCT Delhi & Anr.                      ..... Respondents
                    Through: Mr. U.L.Watwani, APP for State

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may             Yes
       be allowed to see the judgment?

2.     To be referred to Reporter or not?                     Yes

3.     Whether the judgment should be reported               Yes
       in the Digest?


KAILASH GAMBHIR, J._
*

1. Leave to appeal granted.

2. This common order shall dispose of Crl. L.P. Nos. 237/08,

238/08, 239/08, 241/08, 243/08, 244/08, 245/08, 350/08, 252/08,

253/08, 265/08 and 266/08 and consequent appeals filed by the BSES

Rajdhani Power Ltd challenging the order dated 3.10.2008 passed by

the court of Sh. D.C. Anand, Additional Sessions Judge, Delhi while

exercising powers of Special Court constituted under the Indian

Electricity Act 2003.

3. On 3.10.2008 29 complaint cases filed by the petitioner

under Section 135 r/w Section 151 of the Electricity Act, 2003 against

various accused persons were dismissed with a single stroke of pen on

the ground that no authorized person was present in court from the

side of the complainant. The absence of authorized representative

became a matter of grave concern for the court as despite a detailed

order passed in one of the complaint cases i.e. case No. 815/2007

granting sufficient time to the complainant to bring an authorized

representative by 12.00 noon on the said date after the court had

declined exemption to Mr. Binay Kumar, who was earlier

representing the complainant, in all the complaint cases being filed by

the appellant BSES. In fact, Mr. Binay Kumar was declared as an

absconder after order of conviction and registration of FIR against

him directed by the court vide separate order passed by the said court

two days ago i.e. on dated 1.10.2008 in CC No. 1127/2007, holding

him guilty for filing false affidavit before the court. Since the

appellants failed to produce any authorized representative despite

grant of opportunity on 3.10.2008 the Court perhaps loss the judicial

equilibrium and dismissed all the complaint cases fixed on that day.

Aggrieved with the said order, the appellant has preferred the present

appeals.

4. Counsel appearing for the appellant submits that the order

passed by the ld. Special Court is unprecedented, unwarranted and

judiciously precipitated step in belated disregard to the law of the

land but without giving any weight to the loss of public exchequer to

be resulted by passing such order of dismissal. Counsel for the

appellant further submitted that the order dated 1.10.2008 passed by

the ld. Special Court in Complaint case No. 1127/2007 whereby

directions were given by the court for the registration of a case

against Binay Kumar under Section 224 IPC was already under

challenge and operation of the same was stayed by this court vide

orders dated 3.10.2008 in Crl. A. No. 850/2008. The counsel further

submitted that even after disclosing the said fact of stay order, the ld.

Special court not only declined exemption to Mr. Binay Kumar on

3.10.2008 on medical grounds but dismissed all the 29 complaints

filed by the appellant on the ground as to how the exemption to a

person who was an absconder could be granted by the court. The

contention of the counsel for the appellant is that the complainant was

duly represented before the Special Court through an Advocate and

even if the court felt not inclined to grant exemption, the matter could

have easily been adjourned to some other date instead of dismissing

all the complaints after the ritualistic exercise of granting

opportunity of about one hour to produce some authorized

representative. In support of his arguments counsel for the appellant

placed reliance on the judgments of the Apex Court reported in

(2008) 4 SCC 67- S. Anand Vs. Vasumati Chandrasekar (1998) 1 SCC 687 - Associated Cement Co. Ltd. Vs. Keshvanand (2007) 146 PLR-30- Yoginder Kapil Vs. Sanjay Gupta 37 (1989) DLT 241 - Lachhman Singh Vs. Mahinder Singh & Ors 104 (2003) DLT 127 - Kalpana Tyagi Vs. Sneh Lata Sharma

5. Counsel appearing for the respondent , on the other hand,

strongly refuted the submissions made by the counsel for the

appellant. Counsel for the respondent submitted that the appellant

was well aware of the order dated 1.10.2008 passed by the Ld.

Special Court in complaint case No. 1127/2007 whereby directions

were given for the registration of an FIR against Mr. Binay Kumar,

authorized representative of the appellant. The contention of the

counsel on behalf of the respondent is that there was sufficient time

available with the appellant to appoint some alternate person as an

authorized representative and such a newly appointed authorized

representative could have appeared in all these cases to avoid the

order of dismissal from the Court. Even before finally passing an

order of dismissal, the court afforded sufficient time to produce some

other authorized representative to represent the

appellant/complainant but having failed to do so there was no other

option for the special court but to pass an order of dismissal, the

counsel for the respondent submitted. Counsel thus contended that

there is no illegality, infirmity or incorrectness in the order of the

Special Court warranting any interference by this court.

6. I have heard learned counsel for the parties at

considerable length and perused the record.

7. Chapter XXII of the Code of Criminal Procedure deals with

the trial of summons cases by the Magistrates/Special Magistrates

and Section 256 of the Code deals with a situation where the

complainant does not appear or death of the complainant takes place.

Section 256 Cr.P.C. is reproduced as under:-

256. Non-appearance or death of complainant.

(1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

8 As would be seen from the above provision the mandate of

law is that before dismissing a complaint in the absence of a

complainant or his authorized representative, the Magistrate must

form an opinion that the personal attendance of the complainant is

necessary otherwise in all other cases where the complainant is duly

represented by an advocate and the personal attendance of the

complainant on that particular date is not necessary, then, the

Magistrate may dispense with the attendance of the complainant so

as to proceed with the case. In the present case, the appellant had

moved an application seeking exemption of Mr. Binay Kumar from his

personal appearance on 3.10.2007. Against this very person, the

said court had given direction for registration of an FIR on the

alleged ground of filing of a false affidavit by him. The court had

granted an opportunity to file a reply to the show cause notice issued

under Section 250 Cr.P.C. r/w Section 344 Cr.P.C. on 1.10.2008 and

on the same very day itself at around 3.30 p.m. he was sentenced for

15 days simple imprisonment with fine of Rs.500/-. The application

moved by the appellant under Section 389 Cr.P.C. for suspension of

sentence was also dismissed by the trial court. After passing of the

said order the ld. Trial court also gave direction to the State for

registration of an FIR against said Mr. Binay Kumar under section 224

IPC.

9 The said order dated 1.10.2008 was challenged by the

appellant before this Court and vide order dated 3.10.2008 the

operation of the said order was stayed till the next date . The said

stay order is still in force as per the counsel for the appellant. The

appellant on 3.10.2008 sought an exemption of the said very officer

Mr. Binay Kumar on medical grounds which made the court

intemperate on the premise that as to how the appellant could seek

exemption of an officer who was an absconder and against whom

directions were given for the registration of an FIR. One is totally at a

loss of words and flabbergasted to go through the two orders passed

by the learned Special Court i.e. one on 1.10.2008 in CC No.

1127/2007 and then on 3.10.2008 in various complaint cases filed by

the appellant.

10 On 1.10.2008, the Special Court in CC No. 1127/2007

found that the accused who was in jail on the relevant date of

inspection by the raiding team of the appellant could not have been

found indulging in direct theft of electricity and therefore took a view

that the complaint filed by the appellant against such a respondent

who was in jail was apparently false and fabricated which led the

court to issue show cause notice to the complainant under Section

250/344 Cr.P.C. for filing a false complaint with false affidavit and

false deposition on oath. To this extent the action of the court does

not appear to be unreasonable but when the complainant sought time

to file reply to the show cause notice, the Special Court gave time to

file reply on the same day at 2.00 p.m. and at 2.00 p.m. the court in

utter haste convicted the complainant Mr. Binay Kumar for the

offence of perjury after feeling not satisfied with the explanation

given by the complainant through his counsel. Under these

circumstances, Mr. Binay Kumar was convicted and sentenced for a

simple imprisonment for 15 days with fine of Rs.500/- and in default of

which to suffer five days imprisonment with further directions to

SHO P.S. Malviya Nagar to register a case against him for committing

an offence under Section 224 IPC. Warrants of arrest were directed

against the Binay Kumar since he was not found present at 2.00 p.m.

and left the court on the alleged ground of suffering from some

medical problem requiring immediate admission in the hospital. The

application moved by the complainant under section 389 Cr.P.C.

seeking suspension of his sentence was also dismissed. All these

punitive actions initiated by the court on one single day clearly

demonstrates that court had acted more with prejudice and anger and

less with rationale, sobriety and endurance which are the virtues of

any officer engaged in the task of dispensing justice. The Apex

Court in plethora of judgments including in P.N. Duda v. P. Shiv

Shanker, (1988) 3 SCC 167 has observed that :

"21. Justice Benjamin N. Cardozo says that he remembers when the statement made aroused a storm of criticism. (Cardozo: The Nature of the Judicial Process, pp. 171-173). It betrayed ignorance, he said, of the nature of the judicial process. Justice Benjamin N. Cardozo tells us that the business of the judge, was to discover objective truth. His own little individuality, his tiny stock of scattered and uncoordinated philosophies, these, with all his weaknesses and unconscious prejudices, were to be laid aside and forgotten. According to Cardozo the truth is, however, that all these inward questionings are born of the hope and desire to transcend the limitations which hedge our human nature. ............. ...................The training of the judge, if coupled with what is styled the judicial temperament, will help in some degree to emancipate him from the suggestive power of individual dislikes and prepossessions. It will help to broaden the group to which his subconscious loyalties are due. "

11 This court at present would not make any observation

regarding the merits of order dated 1.10.2008 as the same is already

under challenge in Crl. Appeal No. 850/2008 preferred by the

appellant. But since the exemption application of the appellant was

dismissed by the special court based on the order dated 1.10.2008

whereby the said officer Mr. Binay Kumar was declared as absconder,

therefore, it became imperative to deal with the said order dated

1.10.2008 to a short extent of deciding the present case.

12. Although the appellant could have appointed some other

authorized representative in place of Mr. Binay Kumar for his

appearance on 3.10.2008 instead of seeking an exemption of the same

officer against whom the conviction and sentence order was passed

by the court , yet, once the complainant was duly being represented

by its counsel the court could have either adjourned the matter to

some future date if there was any necessity for the presence of the

complainant for the progress of the complainant case and if there

was no such necessity then the court could have gone ahead with the

matter even in the absence of a complainant as per the mandate of

proviso of Section 256 of the Cr.P.C. The Apex Court in the

judgment of Associated Cement Co. Ltd. (Supra) while dealing

with the scope of Section 256 Cr.P.C. held as under:-

"16. What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, the court has a duty to acquit the accused in invitum.

17. Reading the section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the section. The first is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. The second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice."

13. This Court also while dealing with such a similar situation

in Crl. A. No. 131/2008 in CITI Financial Consumer Finance

India Ltd. Vs. Mr. Jasbir Singh DECIDED ON 5TH September

2008 held as under:-

"Mere absence of a complainant on the date of hearing cannot be a ground to dismiss the case in a routine manner. Absence on a solitary occasion or on an occasion when presence of complainant was not necessary does not call for dismissal of a complaint case and dismissal on such occasions is not in the interest of substantial criminal justice, unless the court is of the opinion that the complainant has been trying to protract the matter or adopting dilatory tactics to harass the accused. If the presence of the complainant is not necessary on the date of hearing then it would be proper for the magistrate to adjourn the

case to some other date rather than dismiss of the case under Section 256 Cr.P.C.

In the recent past there has been a spurt of litigation under Section 138 of the Negotiable Instruments Act and every endeavour is being made at the level of the administration to ensure expeditious disposal of these cases. Steps have also been initiated to settle these cases by organizing Lok Adalats, Special Adalats and through other alternative dispute resolution mechanism of mediation and conciliation, but still the disposal of such cases is no where near in comparison to the inflow of litigation in this field. The Magistrates by dismissing these complaints due to the absence of the complainant are not increasing their own load of work but increasing the docket of the High Court as well. Every case which is dismissed in default by the Magistrate, the remedy against such an order is taken by the complainant by filing an appeal under Section 378 (4) of the Cr.P.C. It is a settled position that there is no provision in the Cr.P.C. empowering the Magistrate to restore or revive such case as Magistrate has no inherent powers to review his own order of dismissal or to restore the case unlike the provision existing in C.P.C. In a summon case under Section 138 of the Negotiable Instruments Act three courses are open to the Magistrate when the complainant is absent on the date of hearing : (1) acquit the accused; (2) to adjourn the case for a future date; and (3) to dispense with the attendance of the complainant and proceed with the case. Reading of Section 256 in its entirety would clearly reveal that whenever the Court finds the complainant is absent on a particular date the Court must consider that the personal attendance of the complainant is essential on that date for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other sufficient reason, if the situation on a particular date does not justify the case being adjourned the Court has ample powers to dismiss the complaint and to acquit the accused, but if the presence of the complainant on that particular day is quite unnecessary or not essential in any manner then to dismiss such a complaint would be nothing but would amount to arbitrary and illegal exercise of the power quite contrary to the one envisaged in the said Section. The discretion by the Court must be exercised judicially and fairly without impairing the cause of administration of criminal justice. It is no doubt true that the complainant has a duty to be present on all dates of hearing, but it is equally true

that for his non-appearance on a date when his presence is not necessary the same should not result in passing an order of acquittal or in the dismissal of a complaint case. The Court must realize that after summoning of the accused if the complaint results into his acquittal then the entire cumbersome process would start again to bring back the accused before the Court and, therefore, unless there are sufficient reasons warranting dismissal of a complaint case the Courts may not act in haste in dismissing the complaints filed under Section 138 of the Negotiable Instruments Act, just on account of absence of the complainant on one or two occasions when the presence of the complainant is not necessary on such dates. I am, therefore, of the considered view that in all such cases where complaint cases are being dismissed in default on account of the absence of the complainant or his authorized representative the Magistrate shall give reasons for the dismissal of the complaint case by specifically stating that on such date the presence of the complainant was necessary.

In the light of the above discussion, it would be apparent that the concerned Magistrate has clearly acted in defiance of the said mandate of law and resultantly the impugned order dated 4.12.2007 is set aside."

14 All 29 complaint cases filed by the appellant and fixed

before the Special Court were dismissed by the said court on account

of absence of the authorized representative and refusal to grant

exemption to Mr. Binay Kumar, authorized representative as sought

by the appellant. All these cases relate to theft of electricity which

offence has been made punishable under Section 135 of the

Electricity Act 2003. This new legislation was enacted by the

parliament to streamline the transmission and distribution of the

electricity and for bringing some strict measures against all those who

indulge into theft of electricity at a large scale. Such, thefts whereas,

on the one hand, are responsible to result in major loss of public

exchequer to the State while, on the other hand, such thefts are

committed at the cost of honest consumers who gets deprived to get

uninterrupted electricity supply.

15 No order of the judicial officer should give a slightest

reflection of anger, insensitivity, unfairness and hastiness. Besides the

above hallmarks, the most important personal qualifications required

are moral vigour, ethical firmness and imperviousness to corrupting

or venal influences, humility and lack of affiliations, judicial

temperament, zeal and capacity to work. Judicial temperament of a

judge besides possessing qualities of honesty, integrity besides

adequate knowledge of law, skill and legal soundness must also

possess the qualities of compassion, fairness, diligence, decisiveness,

high order of emotional stability, firmness, serenity, ability, endurance

and open-mindedness. Totally free from any biasness, perversity and

arbitrariness with the overt commitment to the sense of justice. Our

system of justice depends on the faith of the citizens. Out of respect

for the justice delivery system and the position of a judge in this

system, judges have been accorded respect traditionally by our

citizens. The Citizens in return expect their judges to decide their

cases fairly and impartially with no anger or sense of any biasness or

arbitrariness. I feel that the Special Judge has not done his job till the

parties and counsel get a feeling of satisfaction that they have had a

fair hearing of the dispute regardless of the ultimate decision of the

case.

16 The courts are temple of justice where there is no room to

radiate vengeance. In the instant case, the Learned Special Judge

unmindful of the basic philosophy of Justice Delivery System and in a

spree of fury dismissed 29 cases. It is only where the complainant

tries to protract the matter or adopts dilatory tactics to harass the

accused the power under Section 256 Cr.P.C. should be exercised by

a Judge and not out of ferocity and anger.

17 In view of the above discussion, the appeals are allowed

and the impugned order dated 3/10/2008 passed by the Ld. Trial

Court in CC Nos. 941/2007, 568/2007, 571/2007, 1256/2007,

824/2007, 815/2007, 1287/2007, 388/2008, 1024/2007, 572/2007,

386/2008, 936/2007 and 945/2007 are set aside and the same are

restored to their original CC Numbers and stage. A copy of this order

be placed by the Registry before the Inspecting Judge of this judicial

officer.

18 With above directions, the appeals are allowed.

February 02, 2009                          KAILASH GAMBHIR
                                                     JUDGE