Delhi High Court
D.D. Chadha vs State (Nct, Delhi) on 20 August, 1999
Equivalent citations: 1999VAD(DELHI)309, 81(1999)DLT338, 1999(51)DRJ31, ILR1999DELHI304
Author: M.S.A. Siddiqui
Bench: M.S.A. Siddiqui
ORDER M.S.A. Siddiqui, J.
1. By this petition under Section 482 Cr. P.C., the petitioner seeks quashing of the orders dated 6.11.1995 passed by Shri K.S. Pal, Metropolitan Magistrate, New Delhi and 14.1.1998 passed by shri S.K. Tandon, Additional Sessions Judge, New Delhi in Crl. R. No. 25/96.
2. Briefly stated, the prosecution case is that the petitioner is the proprietor of M/s. Hind Automobiles Corporation, which is the registered consumer of the electricity connection of K. No. 0093687648 at 38, Okhla Industrial Estate, New Delhi. On 1.6.1992 factory premises of the petitioner were inspected by the Enforcement Staff petitioner were inspected by the Enforcement Staff of the DESU, when it was discovered that three half seals of the meter i.e. OL-12055, OL-12056 and OL-120587 of monogram IMD-84 were tampered with. On 1.7.1992, Asstt. Engineer Mr. P.C. Bhardwaj lodged the FIR at the P.S. Okhla Industrial Area, Phase III, New Delhi. Investigation pursuant to the said FIR culminated into submission of a charge/sheet under Sections 39/44 of the Indian Electricity Act (for short "the Act") read with Section 379 IPC.
3. On consideration of the report filed under Section 173 Cr. P.C. and documents filed in support thereof, learned Metropolitan Magistrate framed a charge under Sections 39/44 of the Act read with Section 379 IPC against the petitioner. Feeling aggrieved, the petitioner moved the court of the Additional Sessions Judge by filing a revision petition which was rejected by the Additional Sessions Judge vide orders dated 14.1.1998. Not satisfied with the dismissal of the revision, the petitioner has come up before this Court under Section 482 Cr. P.C.
4. Learned counsel for the State raised a preliminary objection regarding maintainability of the petition under Section 482 Cr. P.C. According to the learned counsel, the present petition is a second revision petition against the impugned order of framing of charge against the petitioner, which is expressly barred by Section 397(3) Cr. P.C. and so this Court cannot act as second revisional court under the garb of exercising inherent powers. Reliance is placed on the decision of the Supreme Court in Ganesh Narain Hegde Vs. S. Bangarappa, (1995 2 All. Cri. LR 211 in support of the said contention.
5. It is pertinent to mention that the inherent power under Section 482 Cr. P.C. is designed to achieve a salutary public purpose. In Madhu Limaye Vs. State of Maharashtra, : "the High Court possessed and possesses the inherent powers to be exercised ex debito justitiac to do the real and the substantial justice for the administration of which alone Courts exist".
6. In a recent judgment of the Supreme Court in Arun Shankar Shukla Vs. State of U.P. and others , it was held that inherent powers are in the nature of extra ordinary powers to be used sparingly for achieving the object mentioned in Section 482 of the Code in cases where there is no express provision empowering the High Court to achieve the said object. In Raj Kapoor Vs. State (Delhi Administration), , it was held that the amplitude of the inherent powers under Section 482 remain unaffected under Section 397. In Jitender Kumar Jain Vs. State of Delhi and Others (1999 SCC (Cr.) 77, it was held that "it is true that a second revision petition does not lie before the High Court when one is dismissed by the Court of Sessions. Still the Court of Session is a court subordinate to the High Court and, as such its proceedings are open to scrutiny by the High Court in exercise of its inherent power under Section 482 of the Code of Criminal Procedure". In exercise of its inherent jurisdiction under Section 482 Cr. P.C., the High Court can interfere with and set aside even an interlocutory order if it amounts to an abuse of the process of the Court or if for the purpose of securing ends of justice, the High Court considers its interference absolutely necessary and in that event provision of sub-section (3) of Section 397 Cr. P.C. cannot limit or affect the exercise of inherent power. However, it has to be borne in mind that remedy under Section 482 Cr. P.C. is not be resorted to like the remedy of appeal or revision. The High Court alone may pass orders ex debito justitiac in case where grave and substantial in justice has been done. In Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi, , it was held that the extraordinary power under Section 482 of the Code has to be exercised sparingly.
7. The main question to which the Court exercising inherent jurisdiction under Section 482 Cr. P.C. has to address itself is whether the glaring illegality or injustice stares the Court in the face, and if the answer is in affirmative, then notwithstanding the prohibition contained in Section 397(3) Cr. P.C., the Court must exercise the inherent powers to annul that illegality or injustice. I may here observe that although the justice has to be administered according to law, the ends of justice are higher than the ends of mere law. (State of Karnataka Vs. L. Muniswami and Others, ). It is not the object of a criminal trial to expose an innocent person to the hazard of a trial but to render public justice and to punish the criminals.
8. In the instant case it is undisputed that the petitioner is the proprietor of M/s. Hind Automobiles Corporation which is the registered consumer of the electricity connection of K. No. 0093687648 at 38, Okhla Industrial Estate, New Delhi. It needs to be highlighted that it is the definite case of the prosecution that on the day in question M/s. Ravi Sun Printers were found abstracting electrical energy dishonestly through the aforesaid electric connection. It is significant to mention that both the courts below noted that M/s. Ravi Sun Printers were the tenant of the premises in question but they fasten the criminal liability on the petitioner on the sole ground that it was a registered consumer within the meaning of Section 2(c) of the Act. The petitioner has filed a photostat copy of the joint inspection report (Annexure H) which is the foundation of the prosecution case. This report shows that at the time of inspection, M/s. Ravi Sun Printers were found abstracting electrical energy through the connection, which is in the name of the petitioner. The question is: who is liable for prosecution under Sections 39/44 of the Act read with Section 379 IPC in such a situation. Section 39 of the Act provides answer to the said question, which is in the following terms:-
"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."
9. In Ramachandra Vs. State of Bihar, , it was held that before raising a presumption under Section 39 of the Act that there was dishonest abstraction, the presence of an artificial means, which would render abstraction of energy possible has to be established. Needless to add here that means rea is an essential element in an offense punishable under Sections 39/44 of the Act read with Section 379 IPC. The test of mens rea here is subjective. In Section 39 of the Act, the emphasis is on the word "whoever" and the word "whoever" is of wide amplitude and it embraces within its fold any person including the registered consumer, who has the custody and control over the offending meter used for supply of electrical energy. It follows that Section 39 of the Act creates an offense against a person who has been shown to have dishonestly abstracted, consumed or used the electrical energy.
10. It has to be borne in mind that under the Act, certain civil and criminal liability is imposed upon a consumer as defined in Section 2(c) of the Act. The civil liability is the liability to pay charges for the electrical energy consumed. Sub-Section (3) of Section 23 of the Act entitles the licensee to charge the energy supplied by him to any consumer. This is the civil liability imposed upon a consumer. Reference to Sections 39 and 44 of the Act may also be made, which are penal provisions of Act imposing criminal liability upon an offender.
11. In the instant case, the only ground that weighed with the learned Metropolitan Magistrate in framing of the impugned charge against the petitioner was that the petitioner was the registered consumer within the meaning of Section 2(c) of the Act. Although learned Additional Sessions Judge has observed in the impugned order that on the day in question M/s. Ravi Sun Printers were found dishonestly abstracting the electrical energy yet he held that the petitioner, being a registered consumer under Section 2(c), is liable for prosecution under Sections 39/44 of the Act read with Section 379 IPC. It appears that both the courts below have lost sight of the fact that the statutory theft created by Section 39 of the Act is against a person who has been shown to have dishonestly abstracted, consumed or used the electrical energy. As noticed earlier, the joint inspection report, which is the foundation of the FIR, prime facie, shows that at the time of inspection the offending meters were in custody and control of M/s. Ravi Sun Printers and they were found dishonestly abstracting the electrical energy. Strangely enough, M/s. Ravi Sun Printers have not been charge-sheeted under Sections 39/44 of the Act read with Section 379 IPC. However, the material collected by the prosecuting agency does not make out any case under Section 39/44 of the Act read with Section 379 IPC against the petitioner. Learned Metropolitan Magistrate has misdirected himself in placing reliance on Section 2(c) of the Act for imposing criminal liability on the petitioner for the alleged offence. Surprisingly, the learned Additional Sessions Judge has also supported the wholly erroneous view taken by the learned Metropolitan Magistrate. In this view of the matter, I am constrained to observe, that the impugned order directing framing of a charge against the petitioner under Section 39/44 of the Act read with Section 379 IPC is an affront to law which could not be overlooked as it has resulted in miscarriage of justice.
12. Thus in this case, the impugned order of framing of a charge under Sections 39/44 of the Act read with Section 379 IPC against the petitioner clearly brings about a situation which is an abuse of the process of the Court and for the purpose of securing the ends of justice interference of this Court under Section 482 Cr. P.C. is absolutely necessary to annul the manifest illegality which has resulted in miscarriage of justice.
For the foregoing reasons, the petition is allowed and the impugned charge framed against the petitioner under Sections 39/44 of the Act read with Section 379 IPC is quashed and the petitioner is discharged. His bail bonds are also discharged.