Calcutta High Court (Appellete Side)
West Bengal State Electricity Board & ... vs Sri Manick Lal Dutta & Ors on 5 October, 2010
Author: Harish Tandon
Bench: Pinaki Chandra Ghose, Harish Tandon
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Form No.J. (2)
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Present :
THE HON'BLE JUSTICE PINAKI CHANDRA GHOSE
&
THE HON'BLE JUSTICE HARISH TANDON
F.M.A. No. 45 of 2005.
West Bengal State Electricity Board & Anr.
-vs-
Sri Manick Lal Dutta & Ors.
For the petitioners : Mr. Sumit Panja
Ms. Mitali Bhattacharya
For the Opposite Party : Mr. Moloy Kumar Basu
Mr. Dilip Kumar Samanta
Mr. D.P. Samanta
Judgment on : 05.10.2010
HARISH TANDON, J.:
Challenging an order dated May 13, 2002 passed by the Hon'ble First Court quashing and/or setting aside the first information report in the writ jurisdiction, the West Bengal State Electricity Board (hereinafter referred to as the board) filed the instant mandamus appeal.
The case may be summarized as follows :
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(i) the private respondent, the writ petitioner is carrying on the business of manufacturing oil as proprietor of M/s. Bharat Laxmi Coconut Oil Mill, district Birbuhm.
(ii) for the purpose of running the oil mill an agreement was executed between the board and the writ petitioner for supply of electricity at the premises in question. Pursuant to such agreement electric meter was installed at the said premises of the writ petitioner wherein the said oil mill is situated which bears no. DS2H-0042. In the midnight of 20th June 2001 a loud noise was heard in the meter room resulting into a power failure at the said oil mill premises.
(iii) The writ petitioner informed the board and the line was restored upon effecting necessary repairs.
(iv) A joint inspection was held on 3rd September 2001. It was detected that the cover seal on the back side of the meter was damaged.
However, the board continued to accept the payment on raising bills until a second joint inspection was held on 25th January 2002 and the meter was sent for testing. It appears from the test report that there has been a disparity in showing the unit consume and the actual consumption of electricity which has been assessed at 20% less than the actual consumption. It was further reported that the meter cover seal on the back side was found to be tampered.
(v) On the basis of such report the board authority came into conclusion that there has been a tampering and/or dishonest abstraction of electricity by the writ petitioner and disconnected the supply of 3 electricity. The board authority further lodged a first information report with the Mayureswar police station, Birbhum.
The writ petitioner moved a writ application for setting aside and/or quashing the first information report dated 25th January 2002 as well as the purported joint inspection and testing report dated 25th January 2002.
The Hon'ble First Court took up the said writ application and quashed and set aside the said first information report on the premise that the allegation made in the said first information report is not good enough and sufficient to draw a case for theft of electricity.
Assailing the said order the board has filed the instant mandamus appeal. Mr. Sumit Panja, learned Advocate appearing for the board attacks the order impugned on the ground that the writ court should not embark its journey on the basis of a veracity and/or authenticity of the statement made in the FIR. He succinctly argued that the proceeding initiated on the basis of the FIR before the competent authority can be dismissed by such authority by exercising its power and jurisdiction conferred under the governing law.
Apart from the legal argument as stated above he strenuously argued further that the information given in the FIR is sufficient to take cognizance that the person named in the said FIR has committed an offence of theft of electricity as envisaged under section 39 of the Indian Electricity Act 1910. To substantiate his point as 4 argued above Mr. Panja relies upon a judgment of the Supreme Court in case of State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors. reported in AIR 1992 SC 604 that the writ court should not exercise its extraordinary power in quashing an FIR or a criminal proceeding at the stage of its registration unless the concerned police officer makes an enquiry as to whether the information laid by the informant is reliable and general and lead to a cognizable offence. He further relies upon a judgment reported in (2007) 5 SCC 1 (Manzar Sayeed Khan Vs. state of Maharashtra & Anr.) to the effect that the FIR can only be quashed if it does not disclose an offence and does not require any investigation or recording of any statement. To support his contention that the statement made in the FIR is sufficient to take cognizance of an offence he relies upon a judgment of the apex court in case of Ram Chandra Prasad Sharma & Ors. Vs. State of Bihar & Anr. reported in AIR 1967 SC 349. Reliance was further placed to a judgment of the Supreme Court in case of Avtar Singh Vs. State of Punjab reported in AIR 1965 SC 666 that dishonest abstraction of electricity is an offence under section 39 of the Indian Electricity Act 1910 which is an offence of variety described in the Code of Criminal Procedure as theft.
Mr. Malay Kumar Basu, learned Advocate appearing for the writ petitioner, in support of an impugned order, submits that the allegation levelled against his client in FIR does not constitute an offence be it under section 39 of he Indian Electricity Act 1910 or under the Code of Criminal Procedure or under the Indian Penal Code. He further submits that the Hon'ble First Court was right in holding that the allegation is not sufficient enough and good to constitute an offence. He relies upon the judgments which were relied upon by the Hon'ble First Court while quashing an Fir by 5 an impugned order namely AIR 1967 SC 947(Jagarnath Singh Vs. H. Krishna Murthy & Anr.), 2001 (2) CLJ 171 (Nataraj Hotel Vs. C.E.S.C. Ltd. & Ors.).
Before proceeding further it would be trite to quote section 39 of the Indian Electricity Act 1910 which reads thus :
"39. Theft of energy.- Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than one thousand rupees, or with both; and if it is proved that any artificial means or means not authorised by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer."
Since the entire arena of controversy circled around the FIR dated 25th January 2002 it would be profitable to depict the said FIR in its entirety which is as follows :
WEST BENGAL STATE ELECTRICITY BOARD DISTRIBUTION WING Date : 25.1.2002 Office of the Assistant Engineer Rampurhat ( O & M ) Division W.B.S.E.B. Memo No. RSD/FIR/25/1198 6 To The Officer-in-charge Mayureswar Police Station, Mayureswar, Birbhum.
Sub : FIR against M/s. Bharat Laxmi Coconut Oil Mill, Mollarpur, Birbhum against pilferage of electrical energy by tampering the metering system under Section 39 of Indian Electricity Act, 1910.
Dear sir, Checking and inspection on the metering system of electrical energy i.r.o. M/s. Bharat Laxmi Coconut Oil Mill, Mollarpur, Birbhum.
Undersigned alongwith :-
1. Sri Biswanath Gupta : Superintending Engineer (E) Vigilance, Bidyut Bhawan, Calcutta
2. Sri Balai Chand Mukherjee : Divisional Engineer, Testing Durgapur Testing, W.B.S.E.B.
3. Sri Golok Moy Sinha : Divisional Engineer, Commercial (Acting), Suri, Birbhum, W.B.S.E.B.
4. Sri Goutam Nayak : Assistant Engineer, Testing Durgapur Testing, W.B.S.E.B.
5. Sri Ashok Ganguly : Assistant Engineer, Commercial, Suri, Birbhum, W.B.S.E.B.
6. Sri Subrata Kumar Chatterjee : Assistant Chargeman, Mollarpur, 33/11, KV sub-division, Mollarpur, Birbhum, W.B.S.E.B. During inspection it was detected that the ELECTRONIC ENERGY METER bearing Sl. No. WEB-00499 has been pilfered by the tampering the two seals of the Meter body cover.7
It is a highly illegal means of consumering electrical energy. In this regard a minute on the joint inspection has been drawn and a copy of which is enclosed.
So, you are requested to take necessary action under Section 39 of Indian Electricity Act, 1910.
This letter please be treated as F.I.R.
Yours faithfully, Sd/- Chandra Shekhar Sengupta 25.2.2002 (Chandra Shekhar Sengupta) Assistant Engineer, Rampurhat (OGM) Division, W.B.S.E.B. Enclo : 1 No. Minute of the Joint Inspection on date 25.1.2008 It is not in dispute that a joint inspection was held on 25th January 2002 and some discrepancy was found in the meter, the board authority thought it fit to send the disputed meter for testing. On the basis of such discrepancy which prima facie proves an offence under section 39 of the Indian Electricity Act 1910, the board authority lodged an FIR with the positive assertion that the disputed meter has been pilfered by tampering the two seals of the meter body cover. Such an act means consumption of electric energy illegally. Whether such averment constitutes a cognizable offence for investigation by a police officer whose power under the field is unfettered so long the same is legitimately exercised. Quashing a criminal proceeding and/or FIR before the investigation should not be done in routine manner but sparingly and capriciously the writ court cannot usurp the realm of an Investigating Officer upon whom the power has been conferred exclusively to investigate. It is, 8 however, without any pale of doubt that if it is seen that an allegation does not constitute an offence, certainly the writ jurisdiction can be invoked for quashing an FIR before the commencement of an investigation despite the power conferred under section 482 of the Code of Civil Procedure. The presence of an artificial means renders a presumption and/or possibility of dishonest abstraction of energy which may result into a prosecution such is a ratio which we find has been held by the Supreme Court in a case of Avtar Singh Vs. State of Punjab reported in AIR 1965 SC 666 in following words :
"(8) To put it shortly, dishonest abstraction of electricity mentioned in S. 39 cannot be an offence under the Code for under it alone it is not an offence; the dishonest abstraction is by S. 39 made a theft within the meaning of the Code, that is, an offence of the variety described in the Code as theft. As the offence is created by raising a fiction, the section which raises the fiction, namely S. 39 of the Act, must be said to create the offence. Since the abstraction is by S. 39 to be deemed to be an offence under the Code, the fiction must be followed to the end and the offence so created would entail the punishment mentioned in the Code for that offence. The punishment is not under the Code itself for under it abstraction of energy is not an offence at all."
The point that an extraordinary power under Article 226 can be exercised by the high court to quash the first information report is summarized by the apex court in case of the State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors. reported in AIR 1992 SC 604 in following terms :
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"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly flexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
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 FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the code except under an order of a Magistrate within the purview of section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR 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. 10
4. Where the allegations in the FIR do not constitute a cognizable offence but constitute 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 each 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."
The said decision rendered in Bhajan Lal's case (supra) was accepted and applied in subsequent judgment delivered by three judges of the Supreme Court in case of Manzar Sayeed Khan Vs. state of Maharashtra & Anr. reported in (2007) 5 SCC 1. The cursory look to the FIR and applying the test as has been laid down in case of Bhajan Lal's case (supra) it cannot be said that there is no material to constitute any offence justifying an investigation by the police officer. 11
The cases relied upon and cited by the respondents that mere existence of a tampered meter does not tantamount to an abstraction of electricity, cannot be applied to the instant case as in case of Jagarnath Singh (supra) relied upon by the respondents the Supreme Court was considering an appeal by certificate against an order of conviction in relation to an offence committed under section 39 of the Indian Electricity Act 1910. It was held therein that mere installation of a meter in a dark corner and the presence of certain obstructions in the passage leading to the meter does not constitute a cognizable offence as envisaged under section 39 of the said Act. The said judgment considers an earlier judgment of the Supreme Court in case of Ram Chandra Prasad Sharma (supra) which was also case of a conviction after the full-fledged trial.
In case of Nataraj Hotel (supra) this court while considering the case of a theft of electricity was pleased to direct the Chief Electoral Inspector of the State of West Bengal to examine the allegation of tampering the meter and to file a report. On perusal of the report which was suggestive of the fact that tampering of electric energy may not be concluded on the basis of observation as reported therein, Their Lordships were of the view that the case of theft is not made out. In such perspective Their Lordships were pleased to hold that it is not sufficient to say that the meter has been tampering with. We are afraid that said case is not applicable in the facts and circumstances of the case. In case of Nataraj Hotel (supra) Their Lordships to satisfy Their Lordships' judicial conscience were pleased to direct the inspection of meter by a competent authority and on the basis of report which postulates the least 12 possibility of illegal and dishonest abstraction of electrical energy was pleased to discard the allegation of cognizable offence under section 39 of the Indian Electricity Act. Such a stage has not reached as yet. The Hon'ble First Court at the nascent stage of information has quashed the FIR.
None of the case cited by the respondent is a pointer to an issue that an FIR can be quashed and/or set aside by a writ court invoking extraordinary powers and/or jurisdiction conferred under Article 226 of the Constitution of India.
Thus the order impugned by which a First Information Report was quashed and/or set aside by the Hon'ble First Court is not sustainable and is hereby set aside.
The appeal succeeds. The police authority has liberty to investigate the matter in issue on the basis of an allegation made in the said FIR.
However, there shall be no order as to costs.
(Pinaki Chandra Ghose, J) (Harish Tandon, J)