Madhya Pradesh High Court
Madhya Pradesh Madhya Kshetra Vidyut ... vs Deependra Bhate @ Deependra Ghate on 25 July, 2017
Author: S.K.Awasthi
Bench: S.K.Awasthi
-( 1 )- Cr.R.No. 946/2015
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Criminal Revision No.946/2015
Madhya Pradesh Madhya Kshetra Vidyut Vitran
Company Ltd.
Versus
Deependra Bhate @ Deependra Ghate
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Shri Vivek Jain, Advocate for the applicant.
Shri Sanjay Kumar Mishra, Advocate for the
respondents.
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ORDER
(25.07.2017) The applicant has preferred this revision application on being aggrieved by rejection of complaint by the Special judge (Electricity) Gwalior in Special Sessions Trial (Electricity) No. 2382/2013 vide order dated 10.07.2015.
2- Briefly stated facts of the case are that the respondents are employees of a telecom Company involved in the business of installing mobile towers for signal transmission for the mobile phones and related services. The telecom Company made an application for procuring permanent electricity connection for supply of electricity to the mobile tower. The applicant upon finding the application to be in order, provided an electricity connection to the mobile tower along with meter for recording monthly consumption of electricity. It is borne out from record that till August -( 2 )- Cr.R.No. 946/2015 2013, the parties had no dispute with respect to electricity charges. However, in the month of September, 2013, the telecom company observed a sudden escalation in the electricity charges to the extent that the demand raised from the company was Rs. 3,73,226.
3- According to the complainant/applicant the company was issued notice under Section 56 of Electricity Act 2003 for demand of the outstanding electricity charges. Although, the demand was not honored leading to the last recourse available with the applicant i.e. to temporarily disconnect the electricity supply. However, the allegation against the respondents is that they reconnected the electricity supply without authorization and without making payment of the outstanding amount. Prior to this act of respondents, the applicant had duly intimated the respondents about temporarily disconnection of electricity so that the respondents should not venture into the commission of any act which is punishable under Section 138 of the Electricity Act 2003. Consequently, the act of re-connection was viewed as violation of Section 138 of the Electricity Act and the applicant in the light of Section 151 of the Electricity Act presented the complaint before the Special Court constituted under Section 153 of the Act. 4- The Special Court summoned the respondents and fixed the matter for reading over the particulars of offence under Section 251 of the Code of Criminal Procedure, 1973. The matter was taken up on 10.07.2015, although, prior to such date, the -( 3 )- Cr.R.No. 946/2015 respondents made an application that the proceedings deserved to be dropped as no prima-facie case is made out for the purpose of reading over the particulars of offence.
5- The trial Court after giving consideration to the complaint and the contentions canvassed by the respondents pronounced the order for dropping the proceedings thereby discharging the respondents. 6- The applicant being aggrieved by the said order of the Special Court has preferred the instant revision application.
7- Learned counsel for the applicant submits that the Section 154 of the Electricity Act envisages that the Special Court shall observe a summary trial and in the case of any conviction, it will be lawful for the Special Court to pronounce imprisonment for a term not exceeding five years. He further pointed out Rule 12 (5) of the Electricity Rules of 2005 which provides that the Special Court has power to take cognizance of an offence without the accused being committed to it for trial. By referring these provisions, the learned counsel for the applicant means to argue that in a summary trial as there is no procedure recognized in law for framing of charges, therefore, the Special Court committed error in passing the order of discharge in favour of respondents. Moreover, when the trial Court had issued summons to the respondents with respect to the allegation of re- connection of electricity supply without authorization, thereby taking cognizance of offence punishable under Section 138 of the Electricity act of 2003, the -( 4 )- Cr.R.No. 946/2015 Special Court has no power to review its own order of taking cognizance against the respondents and drop the proceeding. In order to substantiate this contention, the learned counsel for the applicant placed reliance on the judgment of Hon'ble Apex court in the case of Adalat Prasad Vs. Rooplal Jindal and Others, 2004 (7) SCC 338, in which it has been categorically laid down that once process is issued by the Court and the accused has been summoned, the Court has no power to discharge or recall the process. Therefore, he submits that the impugned order is bad in law.
8- Learned counsel for the respondents supported the reasons given in the impugned order and pointed out that the power to drop the proceedings can be traced in Section 251 of Cr.P.C. Thus, the impugned order deserves no interference.
9- I have anxiously considered the rival contentions of the parties and perused the record. The legal propositions which arise for adjudication are as follows :-
(A) Whether the Special Court constituted under Section 153 of the Electricity Act, 2003 has jurisdiction to drop the legal proceedings instituted on the complaint of power distribution company, once the summons have been issued to the accused person?
(B) Whether the law laid down in the case of Adalat Prasad (Supra) is available to the facts of the present case?
10- Answer to Question-A: The background in -( 5 )- Cr.R.No. 946/2015 which this question has been framed is the contention of learned counsel for the applicant that once the summon is issued to the accused person, the Special court is not empowered to recall its order as the Code of Criminal Procedure, 1973, is silent about the power to review. Further, the perusal of Section 154 of the Act of 2003 demonstrates that the trial before the Special Court is a summary trial which does not have procedure for framing of charges. In order to substantiate this contention, the learned counsel for the applicant has placed reliance on Section 251 of Cr.P.C which provides that the Court is not required to frame a formal charge.
11- The contention of the applicant if considered on broad legal principles available to a criminal trial is accurate to the extent it relates to the power of review by a criminal Court; however, the second limb of the agreement advanced by the applicant that the Special Court does not have the power to discharge because in a summary trial, there is no procedure for framing of charges, is to be examined in the light of interpretation given to Section 251 of Cr.P.C or Chapter XX of the Code.
12- The Hon'ble Supreme Court in the case of Bhushan Kumar And Another Vs. State (NCT Of Delhi) And Another, 2012 (5) SCC 424, has categorically stated that;
20. It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through -( 6 )- Cr.R.No. 946/2015 the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code.
13- In earlier judgment of the Hon'ble Suprme Court in the case of Adalat Prasad (Supra), the following observations have been made :-
15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Section 200 & 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of Code.
14- Subsequently, a question was posed before Hon'ble Supreme Court that the law laid down in the Adalat Prasad's case (Supra) was with respect to warrant case and thus, the same cannot be applied in a summons case, although, the Apex Court in the case of Subramanium Sethuraman Vs. State of Maharashtra And Another, (2004) 13 SCC 324, answered this proposition in following manner.
14. In Adalat Prasad's case, this court considered the said view of the court in K.M.Mathew's case and held that the -( 7 )- Cr.R.No. 946/2015 issuance of process under Section 204 is a preliminary step in the stage of trial contemplated in Chapter XX of the Code. Such an order made at a preliminary stage being an interlocutory order, same cannot be reviewed or reconsidered by the Magistrate, there being no provision under the code for review of an order by the same Court. Hence, it is impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall such order. In that line of reasoning this Court in Adalat Prasad's case held :
"Therefore, we are of the opinion that the view of this Court in Mathew's case (supra) that no specific provision is required for recalling and issuance order amounting to one without jurisdiction, does not laid down the correct law".
15. From the above, it is clear that the larger Bench of this Court in Adalat Prasad's case did not accept the correctness of the law laid down by this Court in K.M.Mathew's case. Therefore, reliance on K.M.Mathew's case by the learned counsel appearing for the appellant cannot be accepted nor can the argument that Adalat Prasad's case requires reconsideration be accepted.
16. The next challenge of the learned counsel for the appellant made to the finding of the High Court that once a plea is recorded in a summons case it is not open to the accused person to seek a discharge cannot also be accepted. The case involving a summons case is covered by Chapter XX of the Code which does not contemplates a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 -( 8 )- Cr.R.No. 946/2015 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion.
15- From the perusal of the reproduced portions herein above, it is apparent that the view taken in the case of Bhushan Kumar (Supra) is not complementing the law laid down in the cases of Adalat Prasad and Sethuraman (Supra). While in Bhushan Kumar case (Supra), the power of Magistrate has been recognized for the purpose of dropping the proceedings when the particulars of the offence are read over to the accused person under Section 251 Cr.P.C by the Magistrate whereas the Apex Court in Adalat Prasad and Sethuraman Case (Supra) held that no such power is available while exercising jurisdiction under chapter XX of Cr.P.C. However, this Court has no hesitation in following the law laid down in the Adalat Prasad and Sethuraman case (Supra) for the reason the Bhushan Kumar case (Supra) was decided by two Judges Bench of Hon'ble Supreme Court whereas the earlier judgments of Adalat Prasad and Sethuraman Case (Supra) were rendered by three Judges Bench. Moreover, the judgments of Adalat Prasad and Sethuraman cases (Supra) are earlier in time. 16- The aforestated view taken by this Court is supported by the decision rendered by the Constitutional Bench of this Court in Jabalpur Bus Operators Association Vs. State of M.P. & Others, 2003 (1) MPLJ 513, wherein it was held as under:-
"9. Having considered the matter with broader dimensions, we find that various High Courts have given different opinion on -( 9 )- Cr.R.No. 946/2015 the question involved. Some hold that in case of conflict between two judgments on a point of law, later decision should be followed; while others say that the Court should follow the decision which is correct and accurate whether it is earlier or later. There are High Courts which hold that decision of earlier Bench is binding because of the theory of binding precedent and Article 141 of the Constitution of India. There are also decisions which hold that Single Judge differing from another Single Judge decision should refer the case to Larger Bench, otherwise he is bound by it. Decisions which are rendered without considering the decisions expressing contrary view have no value as a precedent. But in our considered opinion, the position may be stated thus-
With regard to the High Court, a Single Bench is bound by the decision of another Single Bench. In case, he does not agree with the view of the other Single Bench, he should refer the matter to the Larger Bench. Similarly, Division Bench is bound by the judgment of earlier Division Bench. In case, it does not agree with the view of the earlier Division Bench, it should refer the matter to Larger Bench. In case of conflict between judgments of two Division Benches of equal strength, the decision of earlier Division Bench shall be followed except when it is explained by the latter Division Bench in which case the decision of later Division Bench shall be binding. The decision of Larger Bench is binding on Smaller Benches. In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding. Decision of a Larger Bench is binding on smaller Benches. Therefore, the decision of earlier Division Bench, unless distinguished by latter Division Bench, is binding on the High -( 10 )- Cr.R.No. 946/2015 Courts and the Subordinate Courts. Similarly, in presence of Division Bench decisions and Larger Bench decisions, the decisions of Larger Bench are binding on the High Courts and the Subordinate Courts. No decision of Apex Court has been brought to our notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision in binding in all circumstances, or the High Courts and Subordinate Courts can follow any decision which is found correct and accurate to the case under consideration. High Courts and Subordinate Courts should lack competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate hierarchical supremacy of Courts. The common thread which runs through various decisions of Apex Court seems to be that great value has to be attached to precedent which has taken the shape of rule being followed by it for the purpose of consistency and exactness in decisions of Court, unless the Court can clearly distinguish the decision put up as a precedent or is per incuriam, having been rendered without noticing some earlier precedents with which the Court agrees. Full Bench decision in Balbir Singh's case (supra) which holds that if there is conflict of views between the two co-equal Benches of the Apex Court, the High Court has to follow the judgment which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act, in our considered opinion, for reasons recorded in the preceding paragraph of this judgment, does not lay down the correct law as to application of precedent and is, therefore, over-ruled on this point.
After having answered the reference, writ petitions be placed before the Single Judge for decision on merits."
17- In light of the above, this Court has no hesitation -( 11 )- Cr.R.No. 946/2015 in concluding that the Special Court acted contrary to law in passing the impugned order dated 10.07.2015 because in Adalat Prasad and Sethuraman Case (Supra), the Hon'ble Apex Court in an unambiguous manner has held that once summons are issued to the accused persons, there is no power vested with the Magistrate under chapter XX of the Cr.P.C to drop the proceedings thereby discharging the accused persons. The logic canvassed before us that at the stage of read over the particular of offence, a Magistrate can apply its mind in order to examine the maintainability of proceedings on the ground of lack of a prima facie is a fallacious one and deserves to be rejected in the light of Para 16 of the judgment in Sethuraman Case (Supra) wherein the Apex Court has specifically observed that under chapter XX of the Cr.P.C, the Magistrate has no power to discharge once the summons have been issued to the accused persons and there is no quarrel that Section 251 of Cr.P.C falls within the chapter XX of Cr.P.C.
18- Before parting with this issue, it will be appropriate to further compound the legal position discussed herein above. The Delhi High Court has occasioned to adjudicate on the issue of power available to Magistrate under Section 251 of Cr.P.C to drop the proceedings after issuance of process or summons in the case of Arvind Kejriwal & Others Vs. Amit Sibal & Another, 2014 SCC online Del 212, in which following observations were made.
20. In view of the authoritative pronouncements of the Supreme Court in Bhushan case, Krishna Kumar Variar case -( 12 )- Cr.R.No. 946/2015 and Maneka Gandhi case and of this Court in Raujeev Taneja case, Urrshila Kerkar case and S.K.Bhalla case, the accused are entitled to hearing before the learned Metropolitan Magistrate at the stage of framing of notice under Sectyion 251 CrPC in all summons cases arising out of complaints and the Magistrate has to frame the notice underSection 251 CrPC only upon satisfaction that a prima facie case is made out against the accused. However, in the event of the learned Magistrate not finding a prima facie case against the accused, the Magistrate shall discharge/drop the proceedings against the accused. Since there is no express provision or prohibition in this regard in the Code of Criminal Procedure, these directions are being issued in exercise of power under Section 482 read with Section 483 CrPC and Article 227 of the Constitution to secure the ends of justice;
to avoid needless multiplicity of procedures, unnecessary delay in
trial/protraction of proceedings; to keep the path of justice clear of obstructions and to give effect to the principles laid down by the Supreme Court in Bhushan Kumar case, Krishna Kumar Variar case and Maneka Gandhi case.
21. Applying the aforesaid principles to this case, the petitioners are permitted to urge the pleas raised in this petition before the learned Metropolitan Magistrate at the stage of framing of notice under Section 251 CrPC whereupon the learned Metropolitan Magistrate shall consider them and pass a speaking order. The learned Magistrate shall frame the notice under Section 251 CrPC only upon satisfaction that a prima facie case is made out against the petitioners. The learned Magistrate shall be empowered to discharge/drop the proceedings against the petitioners if no case is made out against them. Needless to say, if the learned -( 13 )- Cr.R.No. 946/2015 Magistrate chooses to frame notice under Section 251 CrPC, the petitioners would be at liberty to avail the remedies as available in law.
19- It is clear that the Delhi High Court followed the law laid down in the case of Bhushan Kumar (Supra) and concluded that the Magistrate is required to apply its mind at the time of reading over the particulars of offence for informing the accused about substance of allegation and the Magistrate shall be empowered to discharge the proceedings if no case is made out against the accused persons. It is observed that while taking the aforestated view, the Delhi High Court distinguished the law laid down in Adalat Prasad case (Supra). This decision of Delhi High Court was challenged before Hon'ble Supreme Court and following observations were made while allowing the Criminal Appeal No. 1101/2016 with parties being Amit Sibbal Vs. Arvind Kejriwal.
3. The appellant has challenged the aforesaid directions in these proceedings on the ground that in a complaint case where summoning order has been issued and no charge is to be framed and, the order permitting the respondents to raise such contentions at the stage of framing of notice and directing the Metropolitan Magistrate to consider the same and pass appropriate order is contrary to law. The substance in this contention raised by the learned counsel for the appellant to this legal position is not even rebutted by the respondents. It is, however, submitted by Mr. Jayant Bhushan & Mr. Sanjay R. Hegde, learned senior counsel appearing for the respondents, that in such an eventuality, when the petition filed by the respondents under Section 482 of the -( 14 )- Cr.R.No. 946/2015 Cr.P.C. has not been decided by the High Court on its merits, the matter be sent back to the High Court for decision of the said petition. We agree with this course of action suggested by the learned Senior Counsel appearing for the respondents. We may record at this stage that it is the submission of Dr. A.M. Singhvi, learned senior counsel appearing for the appellant, which was an argued contention before the High Court, that petition under Section 482 of the Cr.P.C.
filed by the respondents is not maintainable and it was also argued that particularly, at this stage, when the notice has been framed and the complainant has also been examined, the High Court should not interfere with the trial. The learned counsel for the respondents refuted this submission and submit that acts of the court should prejudice none. 20- In view thereof, it is apparent that the view taken by the Delhi High Court has not received the stamp of approval by Hon'ble Supreme Court and judgment of Delhi High Court has been set-aside with direction to decide the petition under Section 482 of Cr.P.C on merits.
21- Consequently, the answer to question A is negative and it is held that the Special Court constituted under Section 153 of the Electricity Act, 2003 does not have jurisdiction to drop the legal proceedings by exercising powers under Section 251 of Cr.P.C once the summons have been issued to the accused person.
22- Answer to Question-B: In light of the discussion made herein above and discussion of Adalat Prasad case (Supra) by the co-ordinate three Judges Bench of Hon'ble Supreme Court in Sethurman -( 15 )- Cr.R.No. 946/2015 Case (Supra), the answer to this question is obvious and affirmative that the law laid down in Adalat Prasad case (Supra) is squarely applicable to the facts of the present case.
23- Upon cumulative consideration of discussion made herein above, the instant revision application is allowed. The impugned order dated 10.07.2015 passed by Special Court (Electricity) Gwalior is hereby set-aside. The parties are directed to make their presence before the Special Court/trial Court, Gwalior, on 11.08.2017 for further proceedings. 24- Copy of the order be sent to Special Court for information and compliance.
(S.K.Awasthi) Judge Aman