Jharkhand High Court
Raj Kumar Singhania vs The State Of Jharkhand And Another .... ... on 18 January, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 2560 of 2015
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Raj Kumar Singhania .... Petitioner
-- Versus --
The State of Jharkhand and Another .... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Ms. Amrita Sinha, Advocate
For the State :- Mrs. Priya Shrestha, Advocate
For the JUVNL :- Mr. Nilesh Kumar, Advocate
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6/18.01.2024 Heard Ms. Amrita Sinha, the learned counsel appearing on
behalf of the petitioner, Mrs. Priya Shrestha, the learned counsel appearing
on behalf of the respondent State and Mr. Nilesh Kumar, the learned
counsel appearing on behalf of the Jharkhand Urja Vikas Nigam Limited
(JUVNL).
2. This petition has been filed for quashing of the entire
criminal proceeding including the order dated 09.04.2015 arising out of
Complaint Case No.874 of 2009, T.R. No.275 of 2015, pending in the court
of learned Special Judge, Electricity Act, Hazaribagh.
3. The protest cum complaint case is filed alleging therein that
the complainant is informant of Sadar (Muffasil) P.S. Case No. 155/08
dated 15.2.08 and being aggrieved by and dissatisfied with the final report
as submitted by the I.O. A.S.I. police declaring the case as untrue. It has
been alleged that the complainant being posted and discharging his official
duties as Assistant Electrical Engineer Supply sub-division Hazairbagh on
15.2.08 as well as being a member of anti-power theft team which raided
and inspected on 15.2.08 the Electric meter reading consumption of
electrical energy in the M/S Shive Shakti Cement Industries Demotand
(Morangi) having Electric consumer No. DM-106-HT contract demand 1067
KVA and the raiding/inspecting team detected and found prima facie and
substantial proof of theft of electrical energy by tempering of meter body
and both terminal seals which were found broken during inspection then
the combined raiding Inspecting team seized the meter system as well as
prepared an Inspection report both dated 15.2.08 on spot and on the
direction of said raiding/Inspecting team complainant lodged F.I.R. with
Sadar (Muffasil) Police Station supported and annexed with seizure list and
inspection report which is an integral part and basis of F.I.R. Lodged by
the complainant in discharge of his official duties to save and protect the
Govt. Revenue. It is further submitted that on raid and inspection the
raiding team detected and found theft/pilferage of high-tension electrical
power energy by the accused by adopting ingénues and tricky methods
and devices, causing theft and Loss to the J.S.E.B. to tune of Rs. 58 lakhs
61 thousand 3 hundred and ninety two rupees.
Having found such theft and pilferage of electrical energy by
tampering of meter for wrongful gain and benefit for operation of M/S Shiv
Shakti Cement Industries by the above named accused, the raiding team
seized the meter system and prepared a seizure list duly signed by all the
senior official/experts of J.S.E.B. It is further submitted that on mere
perusal of seizure list dated 15.2.08 it is specifically detailed that two poly
carbonate seals no. 6035731 and 6035732 red coloured as well as two
plastic seals bearing number 0578514 and 0578534 violet coloured were
found broken and this seizure list with seized articles were handed over to
the police at the time of filing of the F.I.R. by the complainant. An
inspection report was also prepared duly signed by the complainant and
all witnesses whereas the above-named accused refused to sign it and
during inspection by said raiding team of Senior JSEB officials it was found
that meter body 057851 and 057853 both were found broken and meter
terminal outer no. were found broken. For that F.I.R. has been filed along
with the seizure list by the complainant with the concerned police station.
It is further submitted that total loss caused to the J.S.E.B. was assessed
under section 126 of the Electricity Act 2003 to the tune of Rs. 58,63,392/.
It has been alleged that for committing such kind of theft of electrical
energy by breaking the seals the accused used the ungrilled big air
passages space lying in between roof and wall for entry into the locked
and sealed meter room and subsequently above named accused virtually
admitting the loss of electrical revenue caused by him by resorting to such
illegal acts amounting to theft and pilferage of high tension electrical
energy deposited a sum of Rs.7,14,720/- for the period of 19.1.08 to
15.2.08 and also closed the aforementioned passage between roof and
wall and thereafter superintending Engineer Electric supply Circle
Hazaribagh allowed reconnection of electricity supply after said
raid/inspection dated 15.2.08. It has been further stated that the
investigating officer of the case has conducted a perfunctory investigation
and has filed final report for the benefit of the accused. The investigating
officer of the case with sole objective to protect the accused has tried to
falsify the case by recording statements under section 161 Cr.P.C. of the
employees serving under the accused whereas he has not recorded the
statements of most of the senior officials of anti power theft
raiding/inspection team of JS.E.B Ranchi head quarter and Hazaribagh
constituting the said team all of them has signed seizure list and
inspection report, which clearly proves that the investigation has been
conducted in most perfunctory manner and has not arrested the accused
and even without examining the complainant and other senior official the
final report has been submitted dated 30.8.08. It has been further stated
that the final report was filed by the I.0. on 14.10.08 and no notice was
issued to the complainant in between 14.10.08 to 12.4.09 and even after
that no mandatory notice was served on complainant hence complainant
having come to know about the submission of final report and acceptance
of final report on pretext that notice to the informant has been issued
without ensuring the fact that whether notice has been served on
informant or not this complainant is the interest of equitable justice to
place the offender accused under domain of statutory provision of law is
filing this protest cum complaint petition.
4. Ms. Amrita Sinha, the learned counsel appearing on behalf of
the petitioner submits that earlier on 15.02.2008 the F.I.R being Sadar
(Muffasil) P.S. Case No.155 of 2008, G.R. No.534 of 2008 was registered
on the ground that inspection in the premises of M/s Shiv Shakti Cement
Industries was conducted and it was found that the meter of the electricity
has been tampered just to stop the actual meter reading of consumption
electricity and thereby put the J.S.E.B in loss to the tune of
Rs.58,63,392/-. She submits that the said F.I.R was investigated by the
police and Final Form has been submitted saying that the case is false in
nature. She submits that on 19.01.2008 another inspection was made on
the same ground which was not expected and the Final Form was there.
She further submits that on the protest petition, the learned court has
been pleased to take cognizance against the petitioner who happened to
be the partner of M/s Shiv Shakti Cement Industries. She submits that in
view of section 151 of the Electricity Act, 2003, only the authorized person
can lodge the case and only complaint is maintainable. However, the F.I.R
has been registered and subsequently the final form has been submitted
which was accepted by the learned court and thereafter the protest
petition was filed and the learned court has been pleased to take
cognizance. She submits that even in the complaint case the company has
not been made accused and in view of section 149 of the Electricity Act,
2003, vicarious liability cannot be fastened upon the petitioner who
happened to be one of the partners of the said industry. She submits that
the case of the petitioner is fully covered in view of the judgment of the
Hon'ble Supreme Court in the case of Sharad Kumar Sanghi v. Sangita
Rane, (2015) 12 SCC 781. She submits that judgment has been
considered by this Court in, S.K. Goel and Others v. State of
Jharkhand, (2022) SCC Online (Jhar) 652. She submits that the
complainant has not made company as accused and the proceeding is bad
in law. She submits that a sum of Rs.7,14,720/- was deposited by the
petitioner for restoration of the electricity in the premises of the said
industries and she submits that was made with regard to provisions made
under section 135 of the Electricity Act, 2003 as the provision is there for
restoration of the electricity after depositing certain amount. On these
grounds, she submits that the entire criminal proceeding is bad in law.
5. The said argument has been resisted by Mr. Nilesh Kumar,
the learned counsel for the respondent JUVNL on the ground that in
collusion with the petitioner, the police has submitted the final form. He
submits that when the final form has been submitted and the protest
petition has been filed, the learned court is competent to take cognizance
and he submits that the learned court has rightly taken cognizance. He
submits that even when the final form is accepted, the learned court is not
deprived of taking cognizance and to buttress his such argument, he relied
in the case of "B.Chandrika v. Santhosh and Another", (2014) 13
SCC 699 and relied on paragraph nos.5 and 6, which are quoted below:
"5. The power of the Magistrate to take cognizance of
an offence on a complaint or a protest petition on the same
or similar allegations even after accepting the final report,
cannot be disputed. It is settled law that when a complaint is
filed and sent to police under Section 156(3) for investigation
and then a protest petition is filed, the Magistrate after
accepting the final report of the police under Section 173 and
discharging the accused persons has the power to deal with
the protest petition. However, the protest petition has to
satisfy the ingredients of complaint before the Magistrate
takes cognizance under Section 190(1)(a) CrPC.
6. This Court in Gopal Vijay Verma v. Bhuneshwar Prasad
Sinha [(1982) 3 SCC 510 : 1983 SCC (Cri) 110] held that the
Magistrate is not debarred from taking cognizance of a
complaint merely on the ground that earlier he had declined
to take cognizance of police report. The judgment was
followed by a three-Judge Bench judgment of this Court
in Kishore Kumar Gyanchandani v. G.D. Mehrotra [(2011) 15
SCC 513 : (2012) 4 SCC (Cri) 633 : AIR 2002 SC 483] ."
6. He further submits that the learned court has rightly taken
cognizance and in view of section 149 of Electricity Act, 2003, every
person who is liable for conduct of business at the time of said occurrence
is liable to be punished. He submits that whatever has been argued by the
learned counsel for the petitioner that can be the subject matter of the
trial. He further submits that an agreement has been made between the
respondent JUVNL and the petitioner and the company has not come
forward for such agreement and pursuant to that the electricity was
provided to the said company. He draws the attention of the Court to the
seizure list annexed with the final form and submits that there is no
finding of the police on the said seizure list and in connivance of the
petitioner, the said final form has been submitted. On these grounds, he
submits that entire criminal proceeding may not be quashed at this stage.
7. There are allegations made that it was tampering with the
meter and a loss to the tune of Rs.58,63,392/- has occurred to the JUVNL.
It is evident from the record that the final form has been submitted by the
police saying that the case is false in nature. The Court finds that along
with the final form, the seizure list is prepared and in seizure list, it has
been disclosed that the seal of the meter was found to be broken. The
seal was in the plastic form and the plastic colour was also changed that
has been disclosed in the seizure list. Thus, there is no finding with regard
to the seizure list in the final form of the police and in the protest petition,
the allegations are made that the police has submitted the final form in
connivance with the petitioner. Even if the final form is submitted and the
learned court has taken the cognizance, the court is not deprived from
taking cognizance as has been held in the case of "B.Chandrika"
(Supra). It is well known that if any agreement for the industry with the
JUVNL is being made, only an authorized person is signing the agreement
on behalf of the company. Whether, this petition has signed any
agreement with the JUVNL for supply of electricity in the said premises of
the company or not can only be the subject matter of the trial as the
contention has been made that the company is not made an accused and
in view of the allegation made it cannot be said that it was without the
knowledge of the petitioner that who was running the company and this
disputed question of fact can only be the subject matter of the trial and in
view of that, the argument with regard to not making the company an
accused made by the learned counsel for the petitioner is not fatal for
proceeding the trial and that can be proved in the trial. Section 151 of the
Electricity Act, 2003 speaks of lodging of the complaint as well as the FIR
and this aspect of the matter is set at rest by the judgment of the Division
Bench of this Court in the case of "Dayal Steel Limited v. State of
Jharkhand and Ors.", 2008 2 JLJR 221. A reference may be made to
the paragraph no.18 of the said judgment, which is quoted below:
"18. As explained by the respondents, the occasion to
inspect the electrical equipment of the consumer arose on
account of the extent of variation up to about 80% in the
readings shown in the meter installed in the appellants
premises. The inspection made by the authorised person of
the Corporation allegedly led to detection of theft of
electricity by artificial means and by such means not
authorised by the Corporation. As alleged by the
respondents, the use of artificial means for abstraction and
consumption of electricity was detected within the premises
of the appellant and the presumption under the law
therefore, was that such abstraction, consumption or use of
electricity has been dishonestly caused by the consumer. On
such alleged detection of theft of electricity, the licensee will
be deemed to have absolute right to prevent illegal
abstraction of electricity and to promptly disconnect the
supply of electricity to the consumer."
8. In view of the above judgment, argument of the learned
counsel appearing on behalf of the petitioner with regard to section 151 of
the Electricity Act, 2003, is not being accepted by the Court. It is disputed
that the agreement is not on the record.
9. It is only a quashing application filed under section 482 of
the Cr.P.C and that contention can only be subject matter in the trial and
this Court is not required to roam into and come to the conclusion that
whether the quashing can be made out or not? In the Full Bench
judgment of the Hon'ble Supreme Court in the case of "Standard
Chartered Bank and Others v. Directorate of Enforcement and
Others", (2005) 4 SCC 530, it has been held in paragraph no.8 of the
said judgment as under:
"8. Inasmuch as all criminal and quasi-criminal
offences are creatures of statute, the amenability of the
corporation to prosecution necessarily depends upon the
terminology employed in the statute. In the case of strict
liability, the terminology employed by the legislature is such
as to reveal an intent that guilt shall not be predicated upon
the automatic breach of the statute but on the establishment
of the actus reus, subject to the defence of due diligence. The
law is primarily based on the terms of the statutes. In the
case of absolute liability where the legislature by the clearest
intendment establishes an offence where liability arises
instantly upon the breach of the statutory prohibition, no
particular state of mind is a prerequisite to guilt.
Corporations and individual persons stand on the same
footing in the face of such a statutory offence. It is a case of
automatic primary responsibility. It is only in a case
requiring mens rea, a question arises whether a corporation
could be attributed with requisite mens rea to prove the
guilt. But as we are not concerned with this question in these
proceedings, we do not express any opinion on that issue."
10. Thus, in view of the above paragraph of the said judgment,
whether the company could be attributed with the requisite mens rea to
prove the guilt, can only be the subject matter of the trial.
11. In view of the above facts, reasons and the analysis, the
Court is not inclined to quash the entire criminal proceeding.
12. Accordingly, Cr.M.P. No.2560 of 2015 is dismissed.
13. However, the trial will proceed in accordance with law
without prejudice of this order as this order is passed only in the premise
of quashing of the proceeding under section 482 of the Cr.P.C.
14. Interim order is vacated.
15. Pending petition if any also stands disposed of accordingly.
( Sanjay Kumar Dwivedi, J.)
SI/,
