High Court
Legal Reasoning
wp-744-2008.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 744 OF 20081.Syed Naeemuddin S/o Syed Khaja,Age: 50 years, Occ: Service working As Junior Engineer, M.S.E.D.C.L. Biloli, Tq. Biloli, District: Nanded2. Khalid S/o Mahetab Deshmukh,Age: 51 years, Occ: Lineman, M.S.E.D.C.L. Biloli_Tq. Biloli, District: Nanded3. Ibrahimsab S/o Khajamiya Kotwal,Manjramkar, age: 50 years, Occ: Lineman, M.S.E.D.C.L. Biloli Tq. Biloli, District: Nanded..PetitionersVersus1. The State of Maharashtra.(Copy to be served Public Prosecutor High Court, Aurangabad).2. Sidhappa S/o Shivraya KatreMachapure, Occ: Agri. R/o. Bamni (Bk) Tq. Biloli, District Nanded...Respondents...Advocate for Petitioners : Mr. A.S. BajajAPP for Respondents/State : Mr. A.S. ShindeAdvocate for Respondent No.2 : Ms. Smita Kulkarni h/f Mr. K.M.Nagarkar... CORAM : S.G. MEHARE, J. RESERVED ON : AUGUST 07, 2024PRONOUNCED ON : SEPTEMBER 12, 2024JUDGMENT :-1.The petitioners/employees of the then MSEDCL hadimpugned the order of the learned Judicial Magistrate First Class wp-744-2008.odt(2)issuing process against them for the offences punishable underSections 323 and 506 of the Indian Penal Code in Criminal CaseNo.114 of 2008 dated 17.06.2008 and the order of the learnedAdditional Sessions Judge, Biloli passed in Criminal Revision No.17 of2008 dated 08.09.2008 dismissing the revision.2. The learned counsel for the petitioners submits that beforethe complaint was filed against the petitioners, an FIR was registeredagainst the complainant for the offences punishable under Sections353 and 504 of the Indian Penal Code and Section 135 of the IndianElectricity Act, 2003. However to counter that case, respondent no.2had filed the false complaint against them. He submitted that thepetitioners being public servants, the order issuing the process againstthem could not be passed unless the sanction is obtained as providedunder Section 197 of the Criminal Procedure Code. No Court can takethe cognizance against the public servants, who are the publicservants defined under Section 21 of the Indian Penal Code or anyother relevant provisions of law. To bolster his argument, he relied onthe case of Lalankumar Singh and Others Vs. State of Maharashtra,2022 SCC Online SC 1383 and State of Haryana and Others Vs.Bhajanlal and Others, 1992 Supp(1) SCC 335. He also submitted thenotification of the State of Maharashtra dated 04.06.2005 to bolsterhis argument that the entire property of the Maharashtra State
Legal Reasoning
wp-744-2008.odt(3)Electricity Board with assets and liability has been vested with theState Government. 3. The learned counsel for the respondent submits that thepetitioners were not the public servants at the relevant time. Theywere the employees of a Board run by the Government. Therefore,sanction under Section 197 of the Criminal Procedure Code was notessential. The Court had directed an inquiry under Section 202 of theCriminal Procedure Code. After receiving the report, the learnedMagistrate has applied his mind and satisfied that there was a case forissuing process against the petitioner. The case laws relied upon bythe learned counsel for the petitioners do not support his contention.Those are on different facts. 4.On hearing the respective counsels, the followingquestion arises for determination :(i) Whether the petitioners were public servants ? (ii) Was the order issuing process against the petitioners was bad inlaw for want of sanction under Section 197 of the Criminal ProcedureCode ? 5.Section 197 of the Criminal Procedure Code provides thatno Court shall take cognizance of any offence, except with theprevious sanction of the concerned authority. The Magistrate proceedto issue summons or warrant as the case may be under Section 204 ofthe Criminal Procedure Code only on taking the cognizance. wp-744-2008.odt(4)6.At the time of admission of present writ petition, astatement was made before the Court that the question whether thepetitioners are public servants is a subject matter for considerationbefore the Apex Court in S.L.P. (Cri.) No.7366 of 2007 and connectedPetitions bearing S.L.P (Cri.) No.7338 of 2007. The question whetherthey are entitled to seek protection under Section 197 of the CriminalProcedure Code requires consideration. On these submissions, therule was made and ad-interim relief was granted and the record wascalled.7.In Criminal Appeal No.1979 of 2010 arising out of S.L.P.(Cri.) No.7336 of 2007, no issue was before the Court about sanctionunder Section 197 of the Criminal Procedure Code and the appellantsdid not claim that they were the public servants. 8.Section 169 of the Electricity Act, 2003 provides that,members, officers, etc., Appellate Tribunal, appropriate commission tobe public servants. The said Section reads thus :“169. Members, officers, etc., of Appellate Tribunal,Appropriate Commission to be public servants.– TheChairperson, Members, officers and other employees of theAppellate Tribunal and the Chairperson, Members,Secretary, officers and other employees of the AppropriateCommission and the assessing officer referred to in section126 shall be deemed, when acting or purporting to act inpursuance of any of the provisions of this Act to be public wp-744-2008.odt(5)servants within the meaning of section 21 of the IndianPenal Code (45 of 1860). “ 9.Apart from members, officers etc., of Appellate Tribunal,the assessing officer referred to in Section 126 were deemed to bepublic servant within the meaning of Section 21 of the Indian PenalCode.10.Sub-section (1) of Section 126 of the Electricity Act, 2003provides that the assessing officer may inspect any place or premisesor after inspection of the equipments, gadgets, machines, devicesfound connected or used, or after inspection of records maintained byany person, the assessing officer comes to the conclusion that suchperson is indulging in unauthorized use of electricity, the assessingofficer shall provisionally assess to the best of his judgement theelectricity charges payable by such person or by any other personbenefited by such use.11.Section 151 of the said Act further provides for thecognizance of the offence. It provides that, no court shall takecognizance of an offence punishable under the said Act except upon acomplaint in writing made by Appropriate Government orAppropriate Commission or any of their officer authorized by them ora Chief Electrical Inspector or an Electrical Inspector or licensee or thegenerating company, as the case may be, for this purpose. However, wp-744-2008.odt(6)by way of amendment, the powers were also conferred upon thepolice to investigate the offence. 12.The State Government by various notification appointedvarious officers of MSEDCL to detect the theft under Section 135 ofthe Electricity Act. The Junior Engineer and the other employeesworking on the field were also appointed for the purpose of Section135. The general practice of assessing the theft of the electricity was,soon after detecting the theft, the person inspecting the meter orgadget provisionally assess the amount of theft. The appropriategovernment or the MSEB Board has authorized the Junior Engineerand linemen to find out the theft of the electricity. Since the personswho were authorized to detect the theft of the electricity and toprovisionally assess the amount of theft, it can be accepted that suchpersons are covered under Section 169 of the Electricity Act, 2003.13.In the old Act of 1948, Section 81 was very specific thatall [members and officers and other employees] of the Board shall bedeemed, when acting or purporting to act in pursuance of any of theprovisions of this Act, to be public servants within the meaning ofsection 21 of the Indian Penal Code (45 of 1860).14.The Madras High Court in V. Srinivasan Vs. The Secretaryand others, Writ Petition No.7424 of 2013 and M.P. Nos.1 and 2 of2013 had decided the issues raised therein on 25.03.2023. Thequestion before the Court was whether Section 81 of the 1948 Act wp-744-2008.odt(7)covering all servants and employees of the electricity board as publicservants under Section 21 of the Indian Penal Code, is identical toSection 169 of the Electricity Act, 2003.15.It was a case of Prevention of Corruption Act, 1988. Ithas been held that Section 169 of the Electricity Act, 2003, is not inpari materia with Section 81 of the Electricity (Supply) Act, 1948, inso far as the persons covered by them are concerned. But bothprovisions are identical to each other, in so far as the provision of lawon which both revolved, is concerned, namely Section 21 of theIndian Penal Code. 16.It has been observed in para 19 that as indicated earlier,the primary contention of the petitioner is that while Section 81 of the1948 Act, made all employees of the Board as public servants, withinthe meaning of Section 21 of the Indian Penal Code, Section 169 ofthe Electricity Act, 2003 named only a few Officers as public servants,within the meaning of Section 21 of the Indian Penal Code. To thisextent, there can be no quarrel with the contention of the learnedcounsel for the petitioner, as Section 169 of the 2003 Act is restrictivethan Section 81 of the 1948 Act. 17.In para 20, it has been observed that ‘But that is not theend of the issue here. Both the 1948 Act and the 2003 Act confinedtheir applications only to the definition of the expression "publicservant" as found in Section 21 of the Indian Penal Code.’ wp-744-2008.odt(8)18.Lastly in para 26, it has been observed that ‘therefore, thereference in Section 169 of the Electricity Act, 2003, making someOfficers as public servants, within the meaning of Section 21 of theIndian Penal Code, has to be construed as a reference confined only tooffences other than corruption. In so far as the offences of corruptionare concerned, the question whether the employees of theCorporations carved out of the Electricity Board are public servants ornot, has to be tested only with reference to the definition in Section2(c) of the Prevention of Corruption Act, 1988 and not with referenceto Section 169 of the Electricity Act, 2003 read with Section 21 of theIndian Penal Code.’ 19.In para 27, it has been further observed that ‘the fact thatSection 169 of the Electricity Act, 2003, restricted the application ofthe definition of the expression "public servant" found in Section 21 ofthe Indian Penal Code, only to a few Officers, is an indication of onlytwo things. They are (i) that in so far as offences other thancorruption, punishable even today under the Indian Penal Code areconcerned, only a few Officers named in Section 169 are publicservants; and (ii) that in so far as offences relating to corruption areconcerned, the Electricity Act, 2003 did not deem fit to restrict theapplication of the Prevention of Corruption Act only to a few Officers.’20.In para 28, it has been observed that ‘in other words, inrespect of offences other than corruption, an employee of the wp-744-2008.odt(9)Electricity Corporation, would not be a public servant unless he iscovered by Section 169 of the Electricity Act, 2003.’21.Section 21 of the Indian Penal Code is comprehensivewhich includes various servants as public servants. In Clause 12, theservants of the local authority, a corporation established by or under aCentral, Provincial or State Act or a Government company as definedin section 617 of the Companies Act, 1956 (1 of 1956) were alsocovered under the definition of the public servants. The MSEDCL isthe government established Board.22.Section 169 of the Electricity Act, 2003 which defines theterm public servants in pursuance to Section 21 of the Indian PenalCode includes the servants or the employees under Section 126 of theElectricity Act, 2003. As discussed above, the Board has authorizedvarious officers including the Junior Engineers and linemen to detectthe theft. Hence, they are covered under the definition of publicservants in Section 169 of the Electricity Act, 2003. Therefore, theCourt is of the view that the learned Judicial Magistrate First Classerred in issuing the process against the petitioners without sanction asrequired under Section 197 of the Criminal Procedure Code. Thisissue was not dealt with at all. The impugned order also does notreflect the application of mind. Hence, the petition deserves to beallowed. Hence, the following order : wp-744-2008.odt(10)ORDERA)The writ petition is allowed.B)The impugned orders of the learned Judicial Magistrate FirstClass, Biloli passed in Criminal Case No.114 of 2008 dated17.06.2008 and learned Additional Sessions Judge, Bilolipassed in Criminal Revision No.17 of 2008 dated 08.09.2008,stand quashed and set aside.C) Rule is made absolute in the above terms. (S.G. MEHARE, J.)Mujaheed//