Loknath vs State of U.P. and Another

Vishnu Chandra Gupta, J.—Heard learned counsel for the petitioners, learned counsel for Power Corporation who appeared on the request made by the Court and learned AGA. In the present case accused petitioner moved an application for bail in an offence u/s 135 of Electricity Act (for short the Act). The bail was granted by the Special Court imposing a condition that an amount of Rs. 50,000/- shall be deposited within two months from the date of order passed by the Court. The accused in pursuance thereof submitted a bond filed under taking to deposit the aforesaid amount to the Court. In terms of the bail order petitioner was released on bail. Now petitioner moved this petition u/s 482, Cr. P.C. to quash the condition imposed in the bail order.

A preliminary objection has been raised by learned AG A that petition u/s 482, Cr. P.C. is not maintainable for modification in order granting bail by subordinate Court because for this purpose there is specific provision contained in Section 439(b), Cr. P.C. and the remedy is available to the petitioner under the said provision.

I have gone through the provision contained u/s 439 (a) and (b) Cr. P.C. and is reproduce hereinbelow:--

Special powers of High Court or Court of Session regarding bail.--

(1) A High Court or Court of Session may direct --

(a) That any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Clause (a) of sub-section (1) of Section 439, Cr. P.C. provides that if any person accused of an offence and is in custody be released on bail, and if offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it consider necessary for the purpose mentioned in subsection.

Section 437(3) is reproduce hereinbelow for ready reference:--

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII or the Indian Penal Code (45 of 1860)or abatement of, or conspiracy or attempt to commit, any such offence, is released on bail under subsection (1), [the Court shall impose the conditions,--

(a) that such person shall attend in accordance with the conditions of the bond executed under the Chapter,

(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the ease so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence,

and may also impose, in the interests of justice, such other conditions as it considers necessary.]

Sub-section (3) of Section 437 provides that when accused commit an offence punishable within imprisonment which may extend to 7 years or more or of an offence under chapters VI, XVI and XVII of the Indian Penal Code or abatement or conspiracy for attempt to commit any such offence the Court while releasing him on bail shall impose any condition as mentioned in sub clauses (a), (b) and (c) of sub-section (3) of section 437.

Section 135 of the Act provides the maximum punishment for imprisonment for a period of 3 years with fine.

Admittedly, the offence u/s 135 of the Act does not fall within the ambit of Section 437(3), Cr. P.C. Hence, the condition imposed would be without jurisdiction. Moreover, there is nothing in special enactment, the Electricity Act 2003, that while releasing the accused condition may be imposed regarding deposit of the amount or any amount determined u/s 135 (1A) of the Act.

The amendment inserted in the Act in the year 2007 provides that in case of detection of theft of electricity, disconnection of supply of electricity shall immediately follow. It was also provided that officer of licencee or supplier duly authorized shall also lodge a complaint in writing of the commission of such offence in police station having jurisdiction within 24 hours. It is also provided that the accused may compound the offence after depositing the amount as mentioned in last proviso of sub-section (1) of Section 135 (1A). Section 154 of the Act provides the procedure to be adopted by the Special Court and also confer powers upon the Special Court dealing with the trial of offence under Electricity Act (Sections 135 to 140 and 150 of the Act). Subsection (4) of Section 154 of the Act provides that Special Court shall determine the civil liability against the consumer or a person in term of money for the theft of energy. The amount of civil liability so determine shall be recovered as if it were a decree of civil Court. Subsection (6) of Section 154 of the Act provides that while determining the civil liability by Special Court finally the amount if any deposited by the consumer will subject to adjustment.

It is true that in this case the charge-sheet has been submitted before the Special Court but determination of civil liability by special Court has not yet been finalised.

In view of Section 437(3), Cr. P.C., the imposition of condition of deposit of money in cases of those offences which are punishable less than 7 years of imprisonment would not be permissible. Hence, the condition of deposit of Rs. 50,000/- while granting the bail to the petitioner would be improper. As the matter relates to jurisdictional error in passing the impugned order, so there shall be no impediment in passing the order by this Court in exercise of its jurisdiction u/s 482, Cr. P.C. for correcting the error.

Even if provisions to challenge the condition imposed by special Court is available to the petitioner in view of Section 439, Cr. P.C. that would also not create any impediment in setting aside the condition of deposit of Rs. 50,000/- imposed in bail order because the petitioner may seek relief u/s 439, Cr. P.C. from the High Court. In view of above, if a petition has been filed u/s 482, Cr. P.C. then the Court is not precluded to pass the order keeping in view the provision contained in Section 439, Cr. P.C. When matter relates to illegal exercise of jurisdiction by any subordinate Court, it would be the duty of the High Court to exercise power of superintendence to ensure that cases should properly be disposed of by the Courts keeping in view of the statutory provision contained in any enactment.

This Court has inherent power to make such orders necessary to prevent abuse of process of any Court or otherwise to secure the ends of justice. In this case, if condition, imposed of depositing Rs. 50,000/- is not lifted, it will not only adversely effect the statutory rights of petitioner but it also amounts to failure on part of this Court to correct the wrong committed by subordinate Court.

In view of above facts and circumstances of the case and keeping in view of legal aspect of the matter, this petition deserves to be allowed.

Consequently, the petition is allowed. The condition imposed by the special Court regarding deposit of Rs. 50,000/- as condition for grant of bail to the petitioner included in the impugned order of bail is set aside. The accused will remain on bail even without de-posit of the aforesaid amount during trial.

It is also provided that this order will not create any impediment in deciding the civil liability by the special Court u/s 154, sub-clause 5 of the Act and to recover the same from the petitioner in accordance with law. There shall be no order as to costs.