Delhi High Court
Bses Rajdhani Power Ltd. vs Khan Jamshed Alam & Anr. on 27 January, 2011
Author: Ajit Bharihoke
Bench: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: January 27, 2011
+ CRL.M.C. NO. 232/2009
BSES RAJDHANI POWER LTD. ....PETITIONER
Through: Mr. Sunil Fernandes, Advocate with
Mr. Deepak Pathak, Advocate.
Versus
KHAN JAMSHED ALAM & ANR. ....RESPONDENTS
Through: Ms. Fizani Husain, APP for the
State/Respondent No. 2.
CORAM:
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be
reported in Digest ?
AJIT BHARIHOKE, J.(ORAL)
1. BSES Rajdhani Power Limited, the petitioner herein is seeking following prayer:-
"(i) to call for and examine records of Criminal Case No. 1138 of 2007 - "BSES v Khan Jamshed Alam" in Special Electricity Court, Patiala House, New Delhi and;
(ii) allow the instant petition and quash/set aside the order dated 3rd January, 2009 in criminal complaint Case No. 1138 of 2007 passed by Special Electricity Court, Patiala House, New Delhi;Crl.M.C.232/2009 Page 1 of 5
(iii) to pass/make any other such other appropriate orders/directions as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
2. Briefly stated, facts relevant for disposal of this petition are that the petitioner company filed a criminal complaint being C.C. No. 1138/2007 for an offence punishable under Section 135 of the Electricity Act against respondent No. 1 Jamshed Alam. Trial Court took cognizance of the complaint and issued summons to the accused for facing trial. The accused/respondent No. 1 avoided putting in appearance. Consequently, proceedings under Section 82 Cr.P.C. were initiated against the accused.
3. On 28.11.2008, the respondent No. 1/accused approached the petitioner company and requested for reduction of theft bill amount and it was reduced from ` 1,56,002/- to ` 41,600/- on compassionate grounds. The supplementary theft bill amount was paid by the accused/respondent No. 1 and a No-Dues Certificate was issued and he was requested to appear before the Trial Court on the next date of hearing with the No-Dues Certificate so that the criminal complaint filed against him could be withdrawn. On 03rd January, 2009, accused/respondent No. 1 appeared before the court and submitted the No-Dues Certificate following which, petitioner company prayed for withdrawal of the complaint as settled/compromised. However, learned Trial Judge took offence to Crl.M.C.232/2009 Page 2 of 5 this out of court settlement and treated it as the petitioner interfering with the judicial process and issued the petitioner company a show cause notice under Section 345 Cr.P.C. Feeling aggrieved by the aforesaid action of learned Additional Sessions Judge, the petitioner has filed instant petition seeking quashing of the impugned order.
5. Before adverting to the submissions made by the learned counsel for the petitioner company, it is necessary to have a look on the relevant portion of the impugned order, which is reproduced thus:
"Heard. The original bill which was relied upon by the Complainant 20.08.07 which shows the amount of Rs. 1,56,002/- whereas matter in complaint was settled for an amount of Rs.41,600/- which stand paid also. Perusal of the file shows that warrants were being issued against the accused since 8.10.08 which continued till process U/s 82 CrPC was issued for today on 21.11.08. The settlement vide admitted bill cum receipt which is mark X is dated 28.11.08 which is after the issue of coercive method of proclamation U/s 82 CrPC against the accused. Such settlement is uncalled for when the pending is pending before the court of law and the court is seized with the matter in complaint which is subject matter of the settlement made by the Complainant. The Complainant seems to have no jurisdiction to interfere with the judicial process in any way whatsoever including by settlement of the subject matter of the complaint which is beyond the domain jurisdiction of the Complainant as no such settlement/compounding of the offence is permitted under the existing law. Even the court is not empowered to compound the offence under the provisions of Electricity Act 2003. No doubt the Complainant is within his rights to withdraw the Crl.M.C.232/2009 Page 3 of 5 complaint and get it dismissed as withdrawn u/s 257 of the CrPC but the same can be done with the permission of the court. It is also so sought in the present case by the Complainant.
In the given facts, I deem it fit and expedient in the interest of justice and to uphold the rule of law to issue Show Cause notice to the Complainant U/s 345 CrPC for explanation in the light of several judgments passed by Apex Court in such matter including orders for deposit of 10% of the settlement amount as such like orders were passed by the Apex Court in the similar circumstances when the matter under Negotiable Instruments Act was settled amicably by the parties and was sought to be withdrawn".
6. On reading of the above order, it is evident that learned Additional Sessions Judge took offence to the out of court settlement arrived at between the petitioner and the accused and he took the view that entering into settlement and making a request to withdraw the complaint amounted to insult of the court as also interruption in the court proceedings.
7. Learned counsel for the petitioner company submits that the view taken by the learned Additional Sessions Judge is erroneous for the reason that petitioner has not made any derogatory remarks against the court nor he had interrupted any proceedings going on in the court. He only informed the court that he had arrived at a settlement with the accused and wanted to withdraw the complaint. If at all the compounding of offence was not permissible, the learned Additional Sessions Judge could have rejected the request instead of Crl.M.C.232/2009 Page 4 of 5 issuing show cause notice under Section 345 Cr.P.C. to the petitioner for an offence which was not committed by the petitioner.
8. I have perused the record. There is nothing on the record to suggest that the petitioner, except for informing the court about the settlement and requesting for withdrawal of the complaint, did any act which could be termed as insult to the court or could be interpreted as interruption in judicial proceedings. The Trial Court, if it was not satisfied with the settlement and was of the view that compounding of offence under Section 135 of the Electricity Act was not permissible, could have dismissed the request for withdrawal. There was no occasion for issuing notice under Section 345 Cr.P.C. when prima facie, no offence whatsoever was committed. Thus, it is difficult to sustain the impugned order.
9. In view of the above, I hereby allow the petition and set aside the impugned order of learned Additional Sessions Judge dated 03.01.2009 as well as the notice under Section 345 Cr.P.C. issued pursuant to that order.
10. Petition is disposed of accordingly.
(AJIT BHARIHOKE) JUDGE JANUARY 27, 2011 akb Crl.M.C.232/2009 Page 5 of 5