Vardhman Properties Ltd. vs Bses Rajdhani Power Ltd.
2009 Latest Caselaw 568 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                CRL.REV.P. 681/2008 & Crl M A 14953/2008

        VARDHMAN PROPERTIES LTD                 ..... Petitioner
                        Through Mr. Sanjay Goswami with Mr.
                        H.K. Banerjee, Advocate

                         versus

        BSES RAJDHANI POWER LTD.               ..... Respondent
                         Through Ms. Anjali Sharma, Advocate

        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 in Digest? Yes


                                  ORDER

17.02.2009

1. This review petition is directed against the impugned order dated

30th September 2008 passed by the learned Additional Sessions Judge

(„ASJ‟) Special Electricity Court in Complaint Case No. 134 of 2006,

rejecting an application filed by the Petitioner Vardhman Properties

Limited („VPL‟) seeking review of an order dated 7 th April 2006 passed

by the learned ASJ summoning the Petitioner for the offence under

Section 135 of Electricity Act 2003 („Act‟).

2. The aforementioned complaint was filed by the Respondent BSES

Rajdhani Power Limited („BRPL‟) in 2006 against Krishan Lal and VPL

in the Special Electricity Court under Section 151 of the Act for

determining their civil and criminal liability in terms of the Act. On 7th

April 2006 the learned ASJ, Special Electricity Court, passed the

following order:

                "Present:   Deemed     Addl.      P.P.   for   the
                complainant.

Arguments heard on pre-summoning evidence.

CW-1 is the authorized representative who had proved his complaint Ex.CW1/2 and CW2 is the member of the raid party who has proved the inspection report Ex.CW2/1 besides other documents. It is mentioned in the joint inspection report Ex.CW2/1 that it was a case of direct theft after bye-passing the meter and a connected load of 10.927 kw was found for industrial purpose. From the perusal of the record and the statement of the said witnesses, I am satisfied that a prima facie case is made out against the accused u/s 135 Electricity Act 2003. Let the accused be summoned for the said offence on filing of PF and RC and process be given dasti for 06.05.2006."

3. In September 2008 the Petitioner filed an application under Section

157 of the Act in the Special Electricity Court seeking review of the

aforementioned order dated 7th April 2006. It was contended by the

Petitioner that it was merely a registered consumer in whose name the

connection stood and was not in any manner involved in the theft of

electricity attributed to accused no.1 Krishan Lal.

4. By the impugned order dated 30th September 2008 the learned

ASJ, Special Electricity Court, dismissed the review application holding

that the scope of Section 157 of the Act was restricted to an order by that

Court under Section 154 of the Act. It was held that in the absence of any

specific provision in the Code of Criminal Procedure („CrPC‟) permitting

recall or review of a summoning order, and particularly in the light of the

judgment of the Supreme Court in Adalat Prasad v. Roop Lal Jindal

2004 (7) SCC 338, there was no power in the Special Electricity Court to

recall the summoning order.

5. Learned counsel for the Petitioner sought to contend that under

Section 154 of the Act it is only the Special Electricity Court which has

the exclusive jurisdiction to try the offence under Section 135 of the Act.

He submits that even the power to summon an accused after taking

cognizance of the offence is traceable to Section 154 of the Act. It is

submitted that the order dated 7th April 2006 was passed under

Section154 of the Act, and would therefore reviewable under Section 157

of the Act.

6. Learned counsel for the Respondent on the other hand points out

that the scope of Section 157 is limited particularly considering that

under Section 155, the Electricity Act makes the CrPC, save and accept

to the limited extend provided under the Act, applicable to the Special

Electricity Court. She further refers to Section 151 of the Act which after

amendment in 2007 specifically permits the Special Electricity Court to

take cognizance of the offence under Section 135 of the Act.

7. In the considered view of this Court, there is no merit in the

contention of the Petitioner. Under Section 151 of the Act,

notwithstanding anything contained in any other enactment, it is only the

Special Electricity Court constituted under Section 153 of the Act that

has the exclusive jurisdiction to take cognizance of the offence under

Section 135 of the Act. The criminal case can be triggered by a criminal

complaint filed by the distribution company. Section 151 reads as under:

"151. Cognizance of offences - No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose:

Provided that the court may also take cognizance to an offence punishable under this Act upon a report of a police officer under Section 173 of the Code of Criminal Procedure 1973:

Provided further that a special court constituted under Section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial."

8. As explained by this Court in Dalbir Singh v. BSES Rajdhani Power

Limited (decision dated 6th February 2009 in Crl.M.C. No. 2059/2008)

the above proviso is really clarificatory in nature. Thus the position is that

the Special Electricity Court can take cognizance of the offence under

Section 135 of the Act without awaiting committal of the case to it by the

Magistrate. Therefore, in the instant case when by the order dated 7th

April 2006 the learned ASJ took cognizance of the offence and

summoned the Petitioner for the offence under Section 135 of the Act,

the learned ASJ was exercising the powers under Section 151 of the Act.

9. Section 154 (3) of the Act details the procedure to be adopted by the

Special Electricity Court for trying a criminal case for an offence under

the Act. It reads as under:

"(3) The Special Court may, notwithstanding anything contained in sub-section (1) of Section 260 or Section 262 of the Code of Criminal Procedure 1973 (2 of 1974), try the offence referred to in sections 135 to 140 and section 150 in a summary way in accordance with the procedure prescribed in the said Code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial:

Provided that where in the course of a summary trial under this sub-section, it appears to the Special Court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the said Code for the trial of such offence:

Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years."

10. Thus, Section 154(3) relates to the stage subsequent to the

summoning of the accused. It gives an option to the Special Electricity

Court to try the case initially in a summary way and, if it thinks it to be

desirable at a subsequent stage, to try the case as a warrant case. Next, the

provisions in Sections 155 and 157 may be examined.

11. Section 155 of the Act reads thus:

"155. Special Court to have powers of Court of sessions - Save as otherwise provided in this Act, the Code of Criminal Procedure 1973 (2 of 1974), insofar as they are not inconsistent with the provisions of this Act, shall apply to the proceedings before the Special Court and for the purpose of the provisions of the said enactments, the Special Court shall be deemed to be a Court of Session and shall have all powers of a Court of Session and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor."

12. Section 157 of the Act reads thus:

"157. Review - The Special Court may, on a petition or otherwise and in order to prevent miscarriage of justice, review its judgment or order passed under Section 154, but no such review petition shall be entertained except on the

ground that it was such order passed under a mistake of fact, ignorance of any material fact or any error apparent on the face of the record: Provided that the Special Court shall not allow any review petition and set aside its previous order or judgment without hearing the parties affected.

Explanation - For the purposes of this Part, "Special Courts" means the Special Courts constituted under sub-section (1) of Section 153."

13. In the conspectus of the provisions contained in Sections 154 and 155

of the Act, Section 157 has to be interpreted as permitting review and

recall of a judgment or a order passed only with reference to Section 154

of the Act and not any other provision. The power under Section 157

cannot be exercised to recall a summoning order passed under Section

151 of the Act. This view of the law is consistent with the decision of the

Supreme Court in Adalat Prasad v. Roop Lal Jindal, whereby it was

held that there is no power in a Magistrate to recall a summoning order.

14. Section 155 makes it clear that the CrPC, save and except to the

extent indicated to the contrary in the Act, would apply ipso facto to the

functioning of the Special Electricity Court. There is no provision in the

CrPC enabling a Court to review its order. Section 157 of the Act is

therefore an exception. Such exception will have to therefore be

construed strictly and within a narrow compass. If it is interpreted

broadly as suggested by the Petitioner and made to include any and every

order passed by the Special Electricity Court then that would permit to

any such order to be reviewed. This would be inconsistent with the

legislative intent of limiting the scope of review under Section 157 of the

Act while at the same time making the CrPC provisions applicable to the

Special Electricity Court.

15. For all the aforementioned reasons, this Court finds no infirmity in

the impugned order dated 30th September 2008 passed by the learned ASJ

dismissing the review petition filed by the Petitioner.

16. The petition and the pending application are dismissed with no

order as to costs.

S.MURALIDHAR, J FEBRUARY 17, 2009 rk