Nihar Ranjan Das And Others vs State Of Odisha And Another
2023 Latest Caselaw 3156 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK
                     CRLMC No.453 of 2017

  Nihar Ranjan Das and Others          ....           Petitioners
                        Mr. Prasanta Kumar Tripathy, Advocate


                                 -Versus-


  State of Odisha and Another            ....    Opposite Parties
                       Mr. Tapas Kumar Praharaj, SC for O.P.No.1
                           Mr. S.K.Dash, Advocate for O.P. No. 2


             CORAM:
             JUSTICE R.K. PATTANAIK

               DATE OF JUDGMENT:11.04.2023

1.

The petitioners by invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C. have challenged the criminal proceeding in I.C.C. Case No.315 of 2015 pending before the court of learned SDJM, Anandapur initiated at the behest of opposite party No.2 and also the impugned order of cognizance dated 8th April, 2016 under Anneuxre-5 on the ground that the continuance of the same would be an abuse of process of law and hence, therefore, it is required to be quashed for the ends of justice.

2. Petitioner Nos. 1 & 2 are the officials of the Northern Electricity Supply Company of Orissa Ltd. (in short 'NESCO'), whereas, petitioner No.3 is a technical staff of the NESCO which is a statutory body discharging public utility service by supplying electricity to different categories of consumers within its area of supply.

Nihar Ranjan Das and Others Vrs. State of Odisha & Another

3. Heard Mr. Tripathy, learned counsel for the petitioners, Mr. Praharaj, learned counsel for State-opposite party No.1 and Mr. Dash, learned counsel for opposite party No.2.

4. An additional affidavit is filed by the petitioners by stating therein that in exercise of power conferred under Section 126 of the Electricity Act, 2003 and explanation(a) thereto, the State Government has designated the officers of distribution licensee as Assessing Officers for the purpose of the Act published vide Notification dated 21st May, 2004 of the Energy Department, Government of Orissa and in view of the said notification, the Assistant Engineer/Assistant Manager of distribution company stands designated as the AO vis-à-vis single phase low transmission consumers and while pleading so, referred to a copy of it as at Anneuxre-6. It is further stated in the said affidavit that by virtue of vesting order dated 25th March, 2021 passed in Case No. 9 of 2021 by the OERC in granting license for distribution and retail supply of electricity of Northern Zone of Odisha to Tata Power Company Ltd. renamed as Tata Power Northern Odisha Distribution Ltd. (TPNODL) along with GRIDCO under a joint venture which is presently the distribution licensee w.e.f. 1st April, 2021 and therefore, the petitioners in view of the above are discharging their duties under TPNODL. To defend the charge, the petitioners in the said affidavit pleaded that the husband of opposite party No.2, namely, complainant being a consumer and he having admitted the consumption of electricity unauthorizedly and in view of a final assessment vide order dated 23rd August, 2017, a representation i.e.Anneuxre-8 was received from him and considering the same, the accessed amount was reduced to Rs. 18,902/- to which he paid it in two installments dated 20th March, 2017 and on 30th October, 2017 later to which the proceeding

Nihar Ranjan Das and Others Vrs. State of Odisha & Another

was dropped. In support thereof the computerized billing and statement is filed along with the affidavit as at Annexure-9 and under the above circumstances, it is contended that the complaint so filed against them is an afterthought and a counterblast in under to get rid of the criminal action in G.R. Case No. 623 of 2017 and also the assessment proceeding under Section 126 of the Electricity Act and therefore, its continuation before the court of learned SDJM, Anandpur would be a gross abuse of process of law.

5. Mr. Tripathy, learned counsel for the petitioners submits that the petitioners had been to the spot on an inspection and during that time, the husband of opposite party No.2 and other consumers were found to be in unauthorized use of electricity bypassing the meter(cutting the service line before the meter) and all on a sudden there was an unlawful gathering and they were obstructed to perform the duty, as a result of which, the power supply could not be disconnected and during and in course of events, the members of the gathering abused and threatened them with dire consequences and not only that wrongfully restrained and confined all of them in a room. It is claimed that the complaint was filed by opposite party No.2, wife of one of the alleged consumers, who was found to be unauthorizedly using power at the time of detection. According to the petitioners, for the alleged incident, an F.I.R. was lodged by petitioner No.1 against the named persons including the husband of opposite party No.2 and accordingly, Ghasipura P.S. Case No. 224 of 2015 was registered under Sections 341,342.294,353,379,506 read with 34 IPC and Section 135 of the Electricity Act, 2003 and in order to retaliate the complaint was filed by making false and baseless allegations against them, whereupon, the learned SDJM,

Nihar Ranjan Das and Others Vrs. State of Odisha & Another

Anandpur not only entertained the same and but also took cognizance of the offences by order dated 8th April, 2016 under Annexure-5 which is liable to be quashed since it has been initiated maliciously, inasmuch as, the complaint is vexatious and filed for wreaking vengeance. It is also submitted that the learned court below could not have taken cognizance of the offences in absence of any sanction under Section 197 Cr.P.C.

6. On the other hand, Mr. Dash, learned counsel for opposite party No.2 submits that the incident is dated 2nd November, 2015 during which the petitioners made their forcibly entry into the house of opposite party No.2, wife of one of the consumers and committed the alleged overt acts and mischief which have been described in the complaint and therefore, the learned court below did not err or commit any wrong in taking cognizance of the offences in I.C.C. Case No. 315 of 2015.

7. Mr. Tripathy, learned counsel for the petitioners submits that such a criminal prosecution has been manifestly attended with malafide and maliciously instituted with a view to spite due to personal grudge for the incident dated 2nd November, 2015, at the time when, the petitioners had been to the spot in an inspection and found not only the husband of opposite party No.2 but also other consumers of having obtained unauthorized electricity supply. Referring to Section 168 of the Electricity Act, Mr. Tripathy further submits that the petitioners are not liable to any such prosecution since they were on duty and whatever did at the time of surprise inspection, it was in good faith and as per the aforesaid provision, no any proceeding can be initiated in view of the express legal bar, the fact which was completely lost sight of by the learned court below while passing the impugned

Nihar Ranjan Das and Others Vrs. State of Odisha & Another

order under Anneuxure-5 and hence, the complaint in I.C.C. Case No. 315 of 2015 deserves to be quashed.

8. The incident is said to have happened on 2nd November, 2015, whereas, the complaint was filed on 16th November, 2015 almost after ten days. Admittedly, there has been delay in filing the complaint and opposite party No.2 in the complaint stated the reason as to why such delay occasioned. It is claimed that opposite party No.2 tried to visit the local P.S. but found the petitioners' presence there and hence, no report could be lodged. It is alleged that the petitioners in fact prevented opposite party No.2 from reporting the incident at the P.S. and hence the delay. It is not in denial from the side of opposite party No.2 with regard to the assessment after the spot verification held and conducted by the petitioners. In fact, immediately after the alleged occurrence dated 2nd November, 2015, petitioner No.1 lodged report on 3rd November, 2015 as a result of which, Ghasipura P.S. Case No. 224 of 2015 was registered, as it was earlier mentioned, which means the incident was promptly reported and it was with regard to the mischief committed by the consumers and others, who allegedly used power unauthorizedly and that apart restrained and wrongfully confined the officials on duty at the time of spot verification.

9. The details of the incident which took place on 2nd November, 2015 at about 1.15 p.m. and thereafter the detention of the petitioners till 3.45 p.m. on the said date stand described in the F.I.R. i.e. Annexure-2.

10. The learned court below after receiving the complaint examined opposite party No.2 under Section 200 Cr.P.C. and held an enquiry in terms of Section 202 Cr.P.C. and finally took

Nihar Ranjan Das and Others Vrs. State of Odisha & Another

cognizance of the offences vide Anneuxre-5. As per the petitioners, they were discharging public duty and had been to the spot for verification and detected unauthorized use of electricity has evident from Annexure-1 series and for the alleged mischief committed by the consumers, F.I.R. was lodged on 3rd November, 2015. From the complaint itself, it is made to appear that the petitioners had gone to the house of opposite party No.2 during such inspection. If such was the incident, the learned court below before taking cognizance of the offences vis-à-vis the petitioners ought to have conducted a detailed enquiry and if necessary was to insist for sanction under Section 197 Cr.P.C. The Court is of the considered view that the petitioners were on duty and not in personal capacity that they had been to the spot and it was in course of spot verification, the alleged incident took place. Even if any excess was committed by the petitioners during the occurrence, keeping in view the spirit of law and Section 168 of the Electricity Act, the learned court below was required to conduct enquiry under Section 202 Cr.P.C. in order to ascertain the veracity of the allegations. Since it was during and in course of discharging official duty, the learned court below, as according to the Court, could not have been oblivious of Section 168 of the Electricity Act which expressly bars any such prosecution for having done acts in good faith. It is not in denial that the petitioners had been on a spot visit and during inspection and while performing official duty, the alleged occurrence took place and in that connection, the F.I.R. under Annexure-1 was lodged by them on the very next day and under such circumstances, the Court is of the conclusion that the court below was required to obtain sanction under Section 197 Cr.P.C. or at least was to hold an elaborate and threadbare enquiry under Section 202 Cr.P.C. to

Nihar Ranjan Das and Others Vrs. State of Odisha & Another

find out the truthfulness of the allegations of opposite party No.2, whose husband being a consumer was said to have found unauthorized used the electricity detected during inspection and when according to the petitioners, they also deposited the amount under assessment in two installments. The officers on duty cannot be subjected to undue harassment in the hands of unscrupulous litigants. To prevent malicious prosecution, provision such as Section 168 of the Electricity Act is put in place. A public servant also enjoys immunity by virtue of Section 197 Cr.P.C. In view of the circumstances leading to the filling of the complaint at the behest of opposite party No.2 for the alleged incident nearly after 10 days should have influenced the learned court below to ponder over the situation and ought to have been cautious before taking cognizance of the offences as it involved the petitioners who are public servants on duty, the fact which is clearly and conspicuously revealed from the complaint. In the humble view of the Court, the learned court below was required to insist for sanction having regard to the facts and circumstances of the case which it failed to do. Therefore, the conclusion is that it is a fit case where the impugned order of cognizance dated 8th April, 2016 under Annexure-5 is liable to be interfered with and quashed with a direction to the learned court below to proceed with the complaint according to law only after receiving sanction to criminally prosecute the petitioners and not otherwise.

11. Accordingly, it is ordered.

12. In the result, the CRLMC stands allowed. As a necessary corollary, the impugned order of cognizance dated 8th April, 2016 under Anneuxre-5 passed in I.C.C. Case No.315 of 2015 by

Nihar Ranjan Das and Others Vrs. State of Odisha & Another

the learned SDJM, Anandapur is hereby quashed with the direction as aforesaid.

(R.K. Pattanaik) Judge

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