Chaudhary Ranjit Singh vs Bses Rajdhani Power Ltd. & Ors.
2009 Latest Caselaw 2512 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CRL. REV. P. NO.217/2008

                                      Date of Decision : 07.7.2009

CHAUDHARY RANJIT SINGH                          ...... Petitioner
                     Through:             Mr.    Ujjwal  K.Jha,
                                          Advocate.

                                Versus

BSES RAJDHANI POWER LTD. & ORS.      ...... Respondents

Through: Mr.J.S.Lamba, Advocate.

CORAM :

HON'BLE MR. JUSTICE V.K. SHALI

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

2. To be referred to the Reporter or not ? NO

3. Whether the judgment should be reported in the Digest ? NO V.K. SHALI, J.(oral)

1. This is a revision petition filed by the petitioner by virtue

of which the learned Additional Sessions Judge, Special

Electricity Court, Vikas Puri, New Delhi directed framing

of charges against the present petitioner for an offence

under Section 135 of the Electricity Act read with Section

379 of the IPC.

2. Briefly stated the facts of the case are that on 24.10.2005,

an Enforcement Team of BSES Rajdhani Power Ltd. with

its Manager named Sh.Sanjay Kumar raided and

inspected the back side of the property bearing WZ No. 14

and 15, Golden Park, Rampura, New Delhi. It seems that

some information had been received by the complainant

that direct theft of electricity was being indulged into by

the occupant of the said premises. On inspection, it was

found that the direct theft of electricity was being illegally

committed by tapping from BSES L V Mains through 8

illegal wires (Copper and Teflon). On inquiry, Chaudhary

Ranjit Singh was stated to be the user of the premises

who was running the said factory for manufacturing of

plastic dana and plastic bags. The connected load of

243.455 KW was found on direct theft. Enforcement

Team seized the material evidence in the shape of wires,

meter and proper necessary documents of inspection

report itself on the site. A complaint was addressed to the

SHO of P.S. Punjabi Bagh, Delhi on 25.10.2005 that a

case under Section 135 of the Electricity Act read with

Section 379 IPC be registered. The SHO of the P.S.

Punjabi Bagh registered an FIR 929/2005 under the

aforesaid Section and handed over the investigation to the

SI Mukesh Kumar.

3. After investigating the matter, charge sheet was filed

against one Arun Kumar who had been arrested at the

time of inspection and was produced in custody before the

Ilaka Magistrate. When the charge sheet was filed in

Court, it directed the IO to conduct further investigation

and inquiries as to why charge sheet was not filed against

the persons who were the owner of the property and

running the manufacturing activity.

4. This led to filing of a supplementary charge sheet in which

Ranjit Singh's name was shown in Column No.2 with the

observation that the factory at the site has been

demolished and there is no evidence available which could

be collected by the police against the said accused who

was the owner of the factory. The accused was stated to

be the resident of WZ No.14 and 15, Golden Park,

Rampura, New Delhi. The learned Special Judge took

cognizance against the accused Chaudhary Ranjit Singh

and directed framing of charge after referring to various

authorities and forming an opinion that there was

sufficient evidence against the petitioner to warrant the

framing of charge against him.

5. The contention of the learned counsel for the plaintiff is

that the cognizance could not have been taken against the

said petitioner at that stage inasmuch as the factory stood

demolished and that the Court could have proceeded

against him under Section 319 of the Cr.P.C. at an

appropriate stage when evidence came against him was

brought on record.

6. The learned Special Judge negated this contention of the

learned counsel for the petitioner.

7. I have heard the learned counsel for the petitioner as well

as the learned counsel for the respondent.

8. The learned counsel for the plaintiff has tried to raise two-

fold submissions; First submission which has been

raised is that the cognizance taken by the learned Special

Judge against the present petitioner is bad in law

inasmuch as there was no sufficient evidence on the basis

of which the learned Special Judge could have taken

cognizance. This was more so on account of the fact

that the investigating agency has shown the name of the

present petitioner in Column no.2 which signifies that

there was complete lack of evidence so far as the

petitioner is concerned with regard to the alleged

commission of offence under Section 135 of the Electricity

Act or under Section 379 of the IPC. The learned counsel

has contended that the investigating officer himself in the

supplementary charge sheet has stated that the factory is

lying demolished and the present petitioner is living at a

different place in respect of which electricity bills were

also furnished by the petitioner. Therefore, it was

contended that there was no prima facie evidence against

the petitioner to take the cognizance. Alternatively, it was

contended that even if the cognizance was taken yet the

petitioner ought to have been discharged because there

was no prima facie evidence to show that he had

committed the offence of direct theft as alleged by the

respondent/complainant.

9. The learned counsel for the petitioner had tried to place

reliance on the judgment in UOI Vs. Prafulla Kumar AIR

1979 Crl. L.J. 154 which was also relied upon by our own

High Court in Sarbans Singh and Ors. Vs. State of NCT

of Delhi, 116(2005) DLT 698 as well as in case Satish

Mehra Vs. Delhi Administration 1996 JCC 507 to

contend that the petitioner deserves to be discharged.

10. I have gone through the said authorities. So far as the

Satish Mehra's case is concerned which permitted the

accused at the time of framing of the charge to give

documents which were not seized by the investigating

agency, to be taken into account by the learned

Magistrate. However, later on in judgment titled State of

Orissa Vs. Debendra Nath Padhi (2005) 1 SCC 568 that

view has been over ruled by the Supreme Court itself.

11. In the later judgment, the Supreme Court has

categorically stated that while considering framing of

charge, the Court which has to frame the charge has to

rely only on documents which are collected by the

investigating agency. The documents which are sought to

be produced by the accused himself before the Court

cannot be taken cognizance of at that point of time so as

to discharge the accused. In other words, documents

which are gathered by the police and filed in the shape of

statements under Section 161 CPC or other documents

like seizure memo, or weapon of offence can only be

considered by the Court. In the instant case, there is no

denial of the fact that the premises in question is not

owned by the petitioner where he was running factory at

the relevant time when the inspection was conducted by

the Enforcement Branch of the supplier of electricity that

the factory was in existence. It is also not in dispute that

at the time of inspection, it was found that the electricity

was directly being tapped from the mains. On the basis of

this prima facie evidence, notwithstanding the fact that

the petitioner may not be present, at the relevant time of

inspection but obviously he is the beneficiary of the theft

of electricity from the Mains and therefore, it cannot be

said that there is no prima facie evidence against him

warranting framing of charge.

12. So far as Prafulla Kumar's case is concerned, it instead of

supporting the petitioner is supporting the prosecution. It

is held in this case that the Judge while considering the

question of framing the charge under Section 227 of the

Code has undoubted power to sift and weigh the evidence

for the limited purpose of finding out whether or not a

prima facie case against the accused has been made out

and if the material discloses grave suspicion which is not

properly explained by the accused then charge can be

framed.

13. In the present case, the petitioner is the owner of the

premises. He was running the factory at the premises in

question. At the time of raid, it was found that direct

power was being drawn if this is not a case where the

charge should be framed in charge which case it should

be framed, the petitioner was the beneficiary of this

fraudulent abstraction.

14. I accordingly do not agree with the contention of the

learned counsel for the plaintiff, that there is complete

lack of evidence which warrants that the accused deserves

to be discharged.

15. So far as the contention of the learned counsel for the

petitioner that a charge under Section 135 of the

Electricity Act and Section 379 IPC could not be framed

against the petitioner is also not tenable. This is on

account of the fact that same transaction can result in the

commission of offence under different enactments which

is preciously what has happened in the instant case.

16. These two provisions of the different enactments lays

down that fraudulent abstraction of electricity is a case of

theft which warrants different punishments under

different enactments. I do not find any force in this

contention of the learned counsel for the petitioner also.

17. For the forgoing reasons, I do not find any irregularity,

impropriety or incorrectness in the impugned order dated

11.1.2008 by virtue of which charge has been directed to

be framed against the petitioner and accordingly, the

present petition is totally misconceived and the same is

dismissed.

V.K. SHALI, J.

JULY 07, 2009 RN