Rohit vs Bses Rajdhani Power Ltd.
2010 Latest Caselaw 341 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                       CRL.M.C. 3635/2009


#     ROHIT                             ..... Petitioner
^                       Through: Mr. Kunwar Udai Bhan Singh, Adv.
                        versus
$     BSES RAJDHANI POWER LTD.              ..... Respondent
^                   Through: Mr. Sunil Fernandes, BSES RPL

*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN

      1.    Whether the Reporters of local papers
            may be allowed to see the judgment?              No

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

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

: V.K. JAIN, J. (ORAL)

1. This is a petition for quashing the criminal complaint filed

by the respondent-BSES Rajdhani Power Limited against the

petitioner under Section 135 of Electricity Act read with

Sections 151 and 154 thereof. The case of the complainant, in

nutshell, is that during inspection/raid, conducted by its

officials on 26th February, 2007, at the back portion of factory

of one Ballan Singh, in Khasra No.5, Village Kamruddin Nagar,

Nangloi, it was found that the accused persons were indulging

in direct theft of electricity by tapping BSES lines and

connecting to a change over switch from where three phases

were distributed to plastic moulding and mixing machines. The

entire load in the premises was found running direct from BSES

RPL System. The officials of BSES had to enter the premises by

jumping from the gate, which had been intentionally closed on

seeing them and police officials and in order to avoid

inspection.

2. The scope of exercise of power under Section 482 Cr. P.C.

and the categories of cases where the High Court may exercise

power under it, relating to cognizable offences, to prevent

abuse of process of any court or otherwise to secure the ends of

justice were set out in State of Haryana v. Bhajan Lal; AIR

1992 SC 604. The illustrative categories indicated by the

Hon'ble Supreme Court are as follows:

"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the First Information Report and other materials, if any accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the

evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constituter only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

In R. Kalyani v Janak C. Mehta & Others; (2009) 1

Supreme Court Cases 516, the Hon'ble Supreme Court

summarized the proposition of law on the subject as under:

"(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirely, disclosed no cognizable offence.

(2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.

3. It has been specifically alleged in the complaint that the

petitioner was one of the persons who was using the electricity

by committing theft from BSES lines. Whether the petitioner

was actually one of the users or not is a matter which requires

investigation during trial. Suffice it to say that the name of this

petitioner, as one of the users, finds mention in the Inspection

Report--(Meter Details) Annexure-6 to the petition against

column "Remarks". Three persons, namely, Raj Singh, Mahavir

and Rohit, are shown as the users and the address shown is

back side of K.No.2631J0510057, Khasra No.5, Village

Kamruddin Nagar, Nangloi. The observations made in the

Inspection Report also show that it was a case of direct theft by

tapping from BSES lines. Column 2.2 of the Inspection Report,

placed on page 36 of the file, shows that three persons Raj

Singh, Advocate, Rohit and Mahavit have been shown as user

and the address shown is back side of K.No.2631J0510057,

Khasra No.5, Village Kamruddin Nagar, Nangloi. Obviously, K.

No. 2631J0510057 is the electric connection installed in the

factory of Ballan Singh.

4. It has also came in the statement of CW-2 that the

accused persons were present on the spot at the time of

inspection. The petitioner is one of the accused in the

complaint. Thus, according to CW-2, who was as member of the

raiding party, he was present on the spot though all the

accused refused to sign and receive the documents.

5. In my view, at this stage, it is not possible for this Court in

the proceedings under Section 482 of Code of Criminal

Procedure to decide whether the petitioner was actually one of

the users of the electricity stolen from BSES lines or not. There

is prima facie evidence available against him on record. The

trial is yet to commence in the presence of accused persons.

Since the matter requires investigation during trial, no ground

is made out for quashing the complaint. The learned counsel

for the complainant states that the complaint has not been

instituted by an authorized person, as the Letter of the

Authority. Annexure-4 is in the name of one Mr. Binay Kumar,

whereas the complaint was filed by Mr. Pankaj Tandon. In my

view, since the matter is still pending before the Trial Court

and the complainant is yet to lead evidence post appearance of

accused persons, the complainant can still file documents and

satisfy the Trial Court as regards the authority of the person,

who has instituted the complaint. At the stage of trial and at

this stage, without giving an opportunity to the complainant to

produce the authority in favour of Shri Pankaj Tandon, it cannot

be said that the complaint has not been instituted by an

authorized person.

I find no merit in the petition and the same is hereby

dismissed.

The observations made in this order shall now affect the

decision of the Trial Court.

(V.K.JAIN) JUDGE JANUARY 21, 2010 bg