Orissa High Court
Hanu Alias Girish Ch. Behera vs State on 18 August, 1993
Equivalent citations: 1993(II)OLR369
JUDGMENT L. Rath, J.
1. The petitioner was prosecuted for theft of electrical energy Under Section 39 of the Indian Electricity Act, 1910 and having been found guilty was convicted and sentenced to R1 for four months and fine of Rs. 1000/-, in default to Rl for one month more. In appeal, while the conviction was maintained, the sentence was modified by remitting the fine but maintaining the substantive sentence. The prosecution started with the Junior Engineer (Electrical) lodging the FIR with the Officer-in-charge, Morada P. S. on 17-6-1986 of his having found the petitioner as unauthorisedly using electricity by extending service connection from the L. T.- Line. On investigation charge-sheet was submitted by the police and the petitioner was convicted on trial. Mr. Das, the learned counsel for the petitioner urged the question of the prosecution to have been still-born as having been launched by a Junior Engineer who was not authorised to institute the prosecution. In support of the submission reliance is placed on Section 50 of the Indian Electricity Act, 1910 which is in the following words :
"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.'' It is the submission of Mr. Das that he raised the question of incompetence of the prosecution before the trial Court itself but however the stand was rejected illegally and the appellate Court also failed to appreciate it. According to him, the onus is upon the prosecution to establish that it had been launched correctly by the authorised person as specified in Section 50 of the Act and that having not been done, the conviction of the petitioner could not be made in a defective prosecution.
2. A reading of Section 50 of the Act would show that the prosecution must be initiated at the instance of ;
(i) The Government, or
(ii) The State Electricity Board, or
(iii) The Electrical Inspector, or
(iv) A person aggrieved.
3. The words "at the instance of" would show that it is not contemplated that any of the four categories of persons at whose instance the case is to be launched are themselves to start the prosecution. It is only that at their 'instance a prosecution can be started. "At the instance" would mean at the bidding of or according to the desire- solicitation or request. To establish that the prosecution has been validly started, the onus would undoubtedly be on the prosecution to prove that the prosecution in fact had been launched at the behest of one of the categories of persons as specified in v. 50 of the Act. AIR 1965 SC 66 (Avtar Singh v. Stats of Punjab is a direct authority on the question. So far as the present case is concerned, admittedly the prosecution has not been launched at the instance of the Government, the State Electricity Board, or the Electrical Inspector. It is the specific case of the State that the investigation was started on the basis of the first information report lodged by the Junior Engineer (Electrical). A submission may be advanced that a prosecution is not launched by mere filing of the first information report and that it is properly launched only when the chargesheet is filed. Even if such submission is accepted, yet that would hardly improve the legal position since if prosecution is taken to have been started on the filing of the charge- sheet-it has to be shown that the chargesheet has been filed at the instance of any of the. categories of persons as mentioned in Section 50 of the Act and if it is shown that the first information report was launched by such a person or was lodged by a person authorised or at the bidding of such a person, the prosecution can be said to have been validty instituted.
4. Since the prosecution in the case was not started, as has been seen, either by the Government or the Board, or the Electrical Inspector, it is to be seen as to whether the Junior Engineer (Electrical) can be said to be a person aggrieved to enable him to set the criminal law in motion. It is the submission of the learned Additional Standing Counsel, placing reliance on the two decisions-one of this Court reported in 46(1978) CLT 340 (Sadhu Charan Sahu v. State) and the other of the Madras High Court reported in AIR 1969 Mad. 2S0 (The Public Prosecutor v. Abdul Wahab and Ors.) that the Junior Engineer (Electrical) is a responsible officer of the Board and hence is a person aggrieved. Before the two decisions are considered, the concept underlying Section 50 and of the words "person aggrieved" may be analysed. A person aggrieved, in legal parlance, is a person who has the right to make a 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 inheres. Section 39 is the offence of theft of electrical energy causing wrongful loss either to the State Government or the Electricity Board. The right to the energy vests in them, as the case may be. It could also be any other owner of the energy under the Indian Electricity Act. The State Government or the Board are authorities who can be rightly also the person aggrieved and it is for such reason that they have been statutorily recognised as the person who could launch the prosecution. The Electrical Inspector is a person who is statutorily vested with different functions under the Act and is statutorily made a substitute. However without having such a right of grievance in himself, a person who is merely a servant of the person aggrieved is not a person aggrieved but he may be entitled to start the prosecution at the instance of a person aggrieved. Thus the Government, the Board, the Electrical Inspector or a person aggrieved can authorise another to lodge the FIR or file the complaint but short of that either a complaint or an FIR by an officer of the Government or of the Board or a subordinate of the Electrial Inspector would not become a person aggrieved.
5. In taking this view I am supported by a decision of the Apex Court reported in AIR 1967 SC 349 (Ram Chandra Prasad Sharma and Ors. v. State of Bihar and Anr.) where the first information report had been lodged by the Mains Superintendent of Patna Electricity Supply Company, referred to in the decision as 'P. E. S. Co.'. The Supreme Court observed in paragraph 10 :
"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 there- fore, it would follow that the law was set in motion by the "person aggrieved". The objection based on Section 50 must, therefore, be held to be untenable.'' A decision of this Court had also taken the identical view in 1983 CLR 337 (Pranabandhu Misra v. The State of Orissa and Ors.) where objection was taken to the lodging of the FIR by a Sub-Assistant Engineer (Electrical). The Court held that there was no doubt that the person aggrieved was the Orissa State Electricity Board, and that it could act only through some person but the Sub-Assistant Engineer would not be himself a "person aggrieved" as there was nothing to show that Sub- Assistant Engineer held any power of attorney from the Board or that he had been specifically empowered to act on behalf of the Board The prosecution was held in the case to have failed. In 1957, Cri. LJ 233 (Dhoolchand and Anr. v. The State), a case from the Rajasthan High Court, view was taken that where electrical energy is generated and distributed by a company, such company can be the person aggrieved by the offence but where the generation and distribution is done by the Government the person aggrieved would also be the Government, but a Superintendent.Electrical and Mechanical Department of the Government does not come within the meaning of the words - "Electric Inspector" and that he is only a paid servant of the Government and should not be said to be aggrieved by the offence. Similarly in 1985 Cri. LJ 561(Tamil Nadu Electricity Board v. D.K. Ramiappa Mudaliar and Anr.), initiation of prosecution by a Junior Engineer was held not to be at the instance of the persons mentioned in Sec 50 of the Act and the fact was held as fatal to the prosecution. So far as the earlier decision of this Court 46 (1978) CLT 340 (supra) is concerned on which strong reliance has been placed by the learned Additional Standing Counsel who also tried to contend on the same authority that filing of the first information report by the Junior Engineer was in fact the lodging of the first information report at the instance of the Board, it was held that when the first information report is lodged by a responsible officer of the Board of the status of an Executive Engineer who was in charge of almost all the affairs and business of the Division under the Board at the relevant time, he could be taken as satisfying the requirements of v. 50 and belong to the category of persons who could lodge the first information report. It is to be seen that even in the very decision the Hon'ble Judge held that it was the Board which was the person aggrieved and that when the complaint was filed by such an Executive Engineer it was to be held that it was at the instance of the Board. In reaching such conclusion reliance had been placed also on AIR 1869 Madras 280 (supra) which had taken the same view. Neither AIR 1969 Madras 280 (supra) nor 46 (1978) CLT 340 (supra) had the benefit of considering the decision of the Supreme Court in AIR 1967 SC 349 (supra) which answered both the questions saying that the person aggrieved would only be the licensee and not one of its employees but that the employee would be shown to have fried the complaint at the instance of the person aggrieved. There hence cannot be a presumption, merely because the person who files the first information report is a responsible employee of the person aggrieved, that the Board had in fact solicited the filing of the first information report through him. The evidence in that regard is singularly lacking as has been fairly conceded by the learned Additional Standing Counsel. Since no such evidence is there, the conclusion is irresistible that prosecution has not discharged the onus of it having been validly instituted.
6. In the result, the revision is allowed and the conviction of the petitioner and the sentence awarded are set aside.