Orissa High Court
Arakhita Patnaik vs State Of Orissa on 13 April, 1994
Equivalent citations: 1994CRILJ2242, 1994(I)OLR562
Author: B. Panigrahi
Bench: B. Panigrahi
JUDGMENT B. Panigrahi, J.
1. The petitioner stood prosecuted Under Section 39 of the Indian Electricity Act, 1910 and Section 379, Indian Penal Code and having been found guilty was convicted and sentenced to undergo R. 1. for one month and to pay a fine of Rs. 500/-, In default to undergo R. 1. for a further period of 15 days. In appeal before the Additiona4 Sessions Judge, Bhubaneswar, the appellate Court confirmed the conviction and sentence passed against the petitioner. Being aggrieved by the findings of conviction and sentence by both the Courts below, the petitioner has filed this revision.
2. The scenario of the prosecution story as revealed from the trial Court's judgment is that Sri S. P. Padhi, PW 4 who was the Assistant Engineer, Electrical, OSEB, Bhubaneswar working in Vigilance squad lodged a written report (vide Ext-1) that he received a confidential report about the theft of electrical energy in village Malipada and accordingly proceeded to the village with the local police staff to conduct raid in the said village on 17-8-1988. In course of the raid, it was found that the petitioner had unauthorisedly used electrical energy through the mechanism of hooking process direct from the L. P. line and thereby had lighted his house by electric bulb. Such unauthorised obstruction of electrical energy amounted to theft of the same. Therefore, PW 4 lodged a report against this petitioner immediately following the detection.
3. The petitioner, however, took a plea of denial of the prosecution case and, Inter alia, pleaded that he had never utilised energy nor committed theft of the same by hooking process.
4. Prosecution in order to sustain conviction against the petitioner had examined 7 witnesses before the Court of the Judicial Magistrate, First Class, Bhubaneswar. Both the Courts below meticulously examined the testimony of the witnesses and had come to a reasonable conclusion that the petitioner committed theft of electrical energy.
5. Learned counsel for the petitioner, Mr. Sarangi was unable to dislodge the findings of the Courts below regarding theft of electrical energy. Of course, he made a feeble attempt to challenge the evidence of the witnesses on the ground that the petitioner had taken a stand that he was a bona fide consumer for the electrical energy and as such had been using the same. On a bare reading of the judgment as well as the evidence, so also the accused statement recorded Under Section 313, Cr PC, I do not find that the accused had taken appeal of bona fide user of electrical energy and was a consumer of the same for his residential house. In such premises, the belated plea taken by the accused petitioner can hardly be accepted. Mr. Sarangi wanted to impress In course of hearing by. producing a consumer card to substantiate the plea of bona fide user. Since he did not take, such plea before the trial Court as well as the appellate Court such plea at the revisional stage is untenable. Therefore, such aspect need not be discussed in detail at the revisional stage.
6. Learned counsel for the petitioner has high-lighted in course of hearing that in this case, the prosecution has significantly failed to comply with requirements of Section 50 of the Indian Electricity Act, 1910. While examining such contention. I feel it appropriate to extract the same :
"50.. Institution of prosecution-No prosecution shall be instituted against any person for any offence against this Act, or any rule, licence or order thereunder, except at the instance of the Government, or a State Electricity Board, an Electrical Inspector, or of a person aggrieved by the same."
Mr. Sarangi argued with vehemence that PW 4 in the instant case was incompetent to lodge a report against the petitioner and to set the criminal law into motion. On a bare reading of the provision, it is indicated that four categories of parsons are authorised Under Section 50 to launch prosecution against the offender, such as (i) The Government, or (ii) the State Electricity Board, or (iii) the Electrical Inspector, or (iv) a person aggrieved. The language appearing in the said Section indicates 'at the instance of* would only mean the person authorised under the Act to launch prosecution, and no other person. An identical question came up before a Bench of this Court which was decided by Hon'ble Mr. Justice L. Rath in the case of Hanu alias Girish Ch. Behera v. State. 1993 (II) OLR 369. In this case, the prosecution was launched by the J. E. of Orissa State Electricity Board for short 'OSEB'). The Court while examining the proriety of the prosecution launched by the J E., held that such persons are incompetent to launch the prosecution. The Court relying on a decision reported in AIR 1965 SC 666 (Avtar Singh v. State of Punjab) held that no person other than the authority prescribed Under Section 60 has power to launch the prosecution against the offender.
7. Learned Additional Government Advocate has canvassed in course of hearing that since PW 4 who was J. E. in Mobile Squad had the authority to launch prosecution against thi3 petitioner, therefore, on such account the prosecution should not be held to be incompetent.
On my asking the learned Additional Government Advocate to produce the authority if conferred by the OSEB to PW 4 to file, prosecution, it could not be satisfactorily established. In the instant case, without any authority from the OSEB, the prosecution report filed by PW 4 would not be tenable.
8. Learned Additional Government Advocate laid much emphasis on the language 'Person aggrieved' and wanted to highlight that PW 4 being an officer of the OSEB, he could be taken as a 'person aggrieved' and as such was competent to lodge report against the petitioner. A person aggrieved from a layman's view is a person who has the right to make the grievance. The right to raise the grievance is of the person in whom the right to the thing about which the grievance is to be made in here. In the decision cited (supra) a reference has been made to another decision of the apex Court reported in AIR 1967 SC 349 (Ram Chandra Prasad Sharma and Ors. v. State of Bihar and Anr.). In the obove Supreme Court decision, it has been authoritatively held in the following manner:
"It is true that Bhattacharya was not himself a 'person aggrieved and that the 'person aggrieved' was the P. E. S. Co, . The P. E. S. Co., however, is a body corporate and must act only through its directors or officers. Here we have the evidence of Ramaswami to the effect that he held a general power of attorney from the P. E. S. Co. and that he was specifically empowered thereunder to act on behalf of P. E. S. Co. in all legal proceedings. The evidence shows that it was at his instance that Bhattacharya launched the first information report and, therefore, it would follow that the law was set in motion by the 'person aggrieved'. The objection based on Sec 50 must, therefore, be held to be untenable."
9. The learned Additional Government Advocate, has however, indicated that the appellate Court had considered this aspect and Game to hold that PW 4, in the instant case can be said to be a 'person aggrieved'. But I am unable to subscribe the view of the appellate Court, pursuant to the Bench decision of this Court as well as the other Supreme Court decisions referred to above.
10. The prosecution even though was able to establish through evidence of PWs 1 to 4 that there was illegal use of energy by the petitioner, yet in view of the absence of the authority to PW 4, by the OSEB, I am unable to agree with the view of the Courts below. Had the prosecution been launched by the Electrical Inspector, nothing could be commented inasmuch as he is the competent authority under Act.
11. The OSEB being a statutory body, in the absence of any authority be it to PW 4, he shall not get any legal right to launch the prosecution. Needless to proliferate other citations on this point.
12. From the conspectus of facts and circumstances of this case, I hold that PW 4 had no legal authority conferred Under Section 50 of the Indian Electricity Act to launch prosecution against the petitioner. The charge Under Section 379, IPC is incidental to Section 39 of the Indian Electricity Act. When the prosecution fails on account of lack of authority on PW 4, the other charge Under Section 379, IPC which was based on the same set of evidence will also not stand. Accordingly the judgments of both the Courts below being vulnerable are. therefore, set aside. The conviction and sentence passed against the petitioner are hereby quashed.
13. In the result, the revision is allowed and the conviction and sentence awarded against the petitioner are set aside. The bail bond, if any, furnished by the petitioner, stands cancelled.