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Judgment
The present case arises out of Gaya Kotwali P.S. Case No.
37 of 2013 dated 12.02.2013 registered on the basis of complaint
made by one Suraj Kumar Rajak, Assistant Electrical Engineer, Gaya
Urban wherein it has been stated that on 12.2.2013 at about 12:00 in
the afternoon, he along with other officials of the Electricity
Department as well as the police force of the local police station
conducted a raid in the premises of one Shri Dinesh Kumar Gupta
situated at Tutwari Chowk Road near Balti Karkhana, Gaya and it
was found that he was engaged in the theft of energy by by-passing
meter of his industrial electricity connection installed in his premises.
Load was found to be 23.72 H.P. (17.69 K.W.) L.T.I.S.-1. The seizure
list was made and the petitioner who was present on the spot, was
arrested. It was estimated that on account of the said theft of energy, a
loss of Rs. 3,25,250/- has been caused. On the basis of the said
complaint of the Assistant Electrical Engineer, Gaya dated 12.2.2013,
Kotwali P.S. Case No. 37 of 2013 was lodged under section 135 of
the Electricity Act. Thereafter, the learned Special Judge, (Electricity),
Magadh Area, Gaya by an order dated 10.4.2013, after filing of the
charge sheet by the Police against the petitioner, has been pleased to
take cognizance against the petitioner herein under section 135 of the
Electricity Act.
The aforesaid order dated 10.04.2013 passed by the learned
Special Judge, (Electricity), Magadh Area, Gaya is under challenge in
the present proceeding.
This Court by an order dated 04.10.2017 had called for the
case diary as well as a report from the learned trial court with regard
to the present stage of the case. The learned trial court has submitted
a report stating that cognizance has been taken in the present case and
the matter is pending for supply of police papers to the accused
persons.
The learned counsel for the petitioner has submitted that a
bare perusal of the FIR would show that the theft was being
committed by Shri Dinesh Kumar Gupta i.e. the father of the
petitioner herein and not by the petitioner herein, who is said to have
been apprehended while he was just present at the spot. The learned
counsel for the petitioner has further referred to the judgment of the
Hon''ble Supreme Court reported in 1992 (suppl.) 1 SCC 335 (State
of Haryana vs. Bhajan Lal), and a judgment of this Court reported in
2007(4) PLJR 215 ( Nand Kishore Singh & Anr. vs. The State of
Bihar ) to contend that if the FIR/complaint does not disclose any
offence, the Court can quash the prosecution under its inherent
jurisdiction.
Per contra, the learned counsel for the opposite party no. 2,
Shri Anand Kumar Ojha, has contended that it would not be
appropriate to quash the criminal prosecution at this stage since
charge sheet has already been filed against the petitioner herein and
cognizance has also been taken against the petitioner, as such the case
is ripe for trial. The learned counsel for the opposite party no. 2 has
placed reliance on judgments reported in:-
(1) AIR 2005 SC 4284 (CREF Finance Ltd. Vs. Shree Shanthi Homes Pvt. Ltd. and Anr.)
(2) (1976) 3 SCC 252 ( Devarapalli Lakshminarayana Reddy and ors. vs. V. Narayana Reddy and ors .)
(3) (2000) 7 SCC 183 ( Narsingh Das Tapadia vs. Goverdhan Das Partani & Anr .)
(4) (1988 (4) SCC 655) ( State of Bihar vs. Murad Ali Khan )
(5) AIR 2012 SC 1890; as well as on a judgment delivered by the Hon''ble High Court of
Delhi at New Delhi dated 02.02.2010, passed in Crl. L.P. No. 45 of
2003 in the case of Santosh Aggarwal vs. Aushim Kapoor and another
and of the Hon ''ble Kerala High Court dated 29.10.2015 passed in
Criminal MC. No. 609 of 2013 in the case of Gireesan R. vs. the
State of Kerala and another. The learned counsel by placing reliance
on the aforesaid judgments, has contended that cognizance is taken of
an offence and the same only amounts to taking judicial notice by the
court of law, possessing jurisdiction, on a cause or matter presented
before it so as to decide whether there is any basis for initiating
proceedings and determination of the causes or matter judicially, thus
no infirmity exists in taking cognizance of the offence in the present
case, which is otherwise made out from a bare perusal of the FIR. It
is also contended that since the petitioner is just to be served with the
police papers, followed by framing of charge, the petitioner would
have liberty to claim discharge, hence at this stage it would not be
appropriate to quash the FIR. Lastly, it has been submitted that
Electricity is public property and theft of electricity being triable by a
Special Court under the scheme of Section 154 of the Electricity Act,
any interference with the FIR would have serious consequences.
I have heard the learned counsel for the parties and perused
the materials on record. I find that pursuant to the FIR, charge sheet
has also been filed by the police against the petitioner, finding the
case to be true, whereupon the learned Special Judge, (Electricity),
Magadh Area, Gaya, by an order dated 10.04.2013 has been pleased
to take cognizance against the petitioner herein. I further find from the
record that prima facie case has been found regarding commission of
theft of electricity in the premises where the industrial electricity
connection was existing in the name of the father of the petitioner and
theft of electricity was being committed by by-passing the meter as
well as the petitioner was arrested from the said place of incident. At
this stage, it would be prejudicial to the petitioner if any comment is
made on the merits of the case. However, the fact remains that prima
facie FIR discloses commission of cognizable offence, hence, upon
perusal of the FIR, it cannot be said that no case is made out. In any
case the police has conducted investigation and submitted charge
sheet against the petitioner herein, his complicity in the alleged
commission of theft of electricity cannot be ruled out and the
innocence or guilt of the petitioner would depend upon evidence
being adduced at the time of trial and the trial reaching its logical
conclusion.
It is a trite law that this Court, under its jurisdiction under
section 482 of the Code of Criminal Procedure, would not embark on
an enquiry as to whether the allegations in the FIR and the charge
sheet were reliable or not and thereupon to render definite finding
about the truthfulness or veracity of the allegations. Even if the case
law, referred to by the learned counsel for the petitioner is considered,
i.e. the judgment of the Hon''ble Apex Court rendered in the case of
Bhajan Lal (supra), this is not a case where a bare reading of the FIR
and the allegations leveled therein do not prima facie make out any
case against the petitioner herein. In the present case commission of
theft of electricity has been found and the petitioner has been said to
have been apprehended from the premises in which the theft of
electricity was taking place, as such there are ample materials in the
present case which disclose commission of a cognizable offence, as
against the petitioner herein, hence this is not a case which warrants
exercise of inherent powers by this Court under Section 482 of the
Cr.P.C. In the case of Bhajan Lal (supra), it has been held that
quashing of a criminal proceeding should be exercised very sparingly
and with circumspection and that too in the rarest of rare cases.
Another aspect of the matter is that the petitioner cannot be permitted
to stifle a legitimate prosecution and if he is so sanguine about him
not being guilty, he has a remedy of discharge under the Code of
Criminal Procedure.
For the reasons stated hereinabove, I do not find any merit
in the present petition and accordingly the same is dismissed,
however, without any order as to costs.