Raj Kumar Singhania v. The State of Jharkhand and Another
Case Details
1 IN THE HIGH COURT OF JHARKHAND, RANCHI ---- Cr.M.P. No. 2560 of 2015 ---- Raj Kumar Singhania .... Petitioner -- Versus -- The State of Jharkhand and Another .... Opposite Parties ---- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Petitioner :- Ms. Amrita Sinha, Advocate For the State For the JUVNL :- :- Mrs. Priya Shrestha, Advocate Mr. Nilesh Kumar, Advocate ---- 6/18.01.2024
Legal Reasoning
KVA and the raiding/inspecting team detected and found prima facie and substantial proof of theft of electrical energy by tempering of meter body and both terminal seals which were found broken during inspection then the combined raiding Inspecting team seized the meter system as well as prepared an Inspection report both dated 15.2.08 on spot and on the direction of said raiding/Inspecting team complainant lodged F.I.R. with Sadar (Muffasil) Police Station supported and annexed with seizure list and inspection report which is an integral part and basis of F.I.R. Lodged by the complainant in discharge of his official duties to save and protect the Govt. Revenue. It is further submitted that on raid and inspection the raiding team detected and found theft/pilferage of high-tension electrical power energy by the accused by adopting ingØnues and tricky methods and devices, causing theft and Loss to the J.S.E.B. to tune of Rs. 58 lakhs 61 thousand 3 hundred and ninety two rupees. Having found such theft and pilferage of electrical energy by tampering of meter for wrongful gain and benefit for operation of M/S Shiv Shakti Cement Industries by the above named accused, the raiding team seized the meter system and prepared a seizure list duly signed by all the senior official/experts of J.S.E.B. It is further submitted that on mere perusal of seizure list dated 15.2.08 it is specifically detailed that two poly carbonate seals no. 6035731 and 6035732 red coloured as well as two plastic seals bearing number 0578514 and 0578534 violet coloured were found broken and this seizure list with seized articles were handed over to the police at the time of filing of the F.I.R. by the complainant. An inspection report was also prepared duly signed by the complainant and 3 all witnesses whereas the above-named accused refused to sign it and during inspection by said raiding team of Senior JSEB officials it was found that meter body 057851 and 057853 both were found broken and meter terminal outer no. were found broken. For that F.I.R. has been filed along with the seizure list by the complainant with the concerned police station. It is further submitted that total loss caused to the J.S.E.B. was assessed under section 126 of the Electricity Act 2003 to the tune of Rs. 58,63,392/. It has been alleged that for committing such kind of theft of electrical energy by breaking the seals the accused used the ungrilled big air passages space lying in between roof and wall for entry into the locked and sealed meter room and subsequently above named accused virtually admitting the loss of electrical revenue caused by him by resorting to such illegal acts amounting to theft and pilferage of high tension electrical energy deposited a sum of Rs.7,14,720/- for the period of 19.1.08 to 15.2.08 and also closed the aforementioned passage between roof and wall and thereafter superintending Engineer Electric supply Circle Hazaribagh allowed reconnection of electricity supply after said raid/inspection dated 15.2.08. It has been further stated that the investigating officer of the case has conducted a perfunctory investigation and has filed final report for the benefit of the accused. The investigating officer of the case with sole objective to protect the accused has tried to falsify the case by recording statements under section 161 Cr.P.C. of the employees serving under the accused whereas he has not recorded the statements of most of the senior officials of anti power theft raiding/inspection team of JS.E.B Ranchi head quarter and Hazaribagh constituting the said team all of them has signed seizure list and inspection report, which clearly proves that the investigation has been conducted in most perfunctory manner and has not arrested the accused and even without examining the complainant and other senior official the 4 final report has been submitted dated 30.8.08. It has been further stated that the final report was filed by the I.0. on 14.10.08 and no notice was issued to the complainant in between 14.10.08 to 12.4.09 and even after that no mandatory notice was served on complainant hence complainant having come to know about the submission of final report and acceptance of final report on pretext that notice to the informant has been issued without ensuring the fact that whether notice has been served on informant or not this complainant is the interest of equitable justice to place the offender accused under domain of statutory provision of law is filing this protest cum complaint petition. 4. Ms. Amrita Sinha, the learned counsel appearing on behalf of the petitioner submits that earlier on 15.02.2008 the F.I.R being Sadar (Muffasil) P.S. Case No.155 of 2008, G.R. No.534 of 2008 was registered on the ground that inspection in the premises of M/s Shiv Shakti Cement Industries was conducted and it was found that the meter of the electricity has been tampered just to stop the actual meter reading of consumption electricity and thereby put the J.S.E.B in loss to the tune of Rs.58,63,392/-. She submits that the said F.I.R was investigated by the police and Final Form has been submitted saying that the case is false in nature. She submits that on 19.01.2008 another inspection was made on the same ground which was not expected and the Final Form was there. She further submits that on the protest petition, the learned court has been pleased to take cognizance against the petitioner who happened to be the partner of M/s Shiv Shakti Cement Industries. She submits that in view of section 151 of the Electricity Act, 2003, only the authorized person can lodge the case and only complaint is maintainable. However, the F.I.R has been registered and subsequently the final form has been submitted which was accepted by the learned court and thereafter the protest petition was filed and the learned court has been pleased to take 5 cognizance. She submits that even in the complaint case the company has not been made accused and in view of section 149 of the Electricity Act, 2003, vicarious liability cannot be fastened upon the petitioner who happened to be one of the partners of the said industry. She submits that the case of the petitioner is fully covered in view of the judgment of the Hon’ble Supreme Court in the case of Sharad Kumar Sanghi v. Sangita Rane, (2015) 12 SCC 781. She submits that judgment has been considered by this Court in, S.K. Goel and Others v. State of Jharkhand, (2022) SCC Online (Jhar) 652. She submits that the complainant has not made company as accused and the proceeding is bad in law. She submits that a sum of Rs.7,14,720/- was deposited by the petitioner for restoration of the electricity in the premises of the said industries and she submits that was made with regard to provisions made under section 135 of the Electricity Act, 2003 as the provision is there for restoration of the electricity after depositing certain amount. On these grounds, she submits that the entire criminal proceeding is bad in law. 5. The said argument has been resisted by Mr. Nilesh Kumar, the learned counsel for the respondent JUVNL on the ground that in collusion with the petitioner, the police has submitted the final form. He submits that when the final form has been submitted and the protest petition has been filed, the learned court is competent to take cognizance and he submits that the learned court has rightly taken cognizance. He submits that even when the final form is accepted, the learned court is not deprived of taking cognizance and to buttress his such argument, he relied in the case of “B.Chandrika v. Santhosh and Another”, (2014) 13 SCC 699 and relied on paragraph nos.5 and 6, which are quoted below: “5. The power of the Magistrate to take cognizance of an offence on a complaint or a protest petition on the same or similar allegations even after accepting the final report, cannot be disputed. It is settled law that when a complaint is filed and sent to police under Section 156(3) for investigation 6 and then a protest petition is filed, the Magistrate after accepting the final report of the police under Section 173 and discharging the accused persons has the power to deal with the protest petition. However, the protest petition has to satisfy the ingredients of complaint before the Magistrate takes cognizance under Section 190(1)(a) CrPC. 6. This Court in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha [(1982) 3 SCC 510 : 1983 SCC (Cri) 110] held that the Magistrate is not debarred from taking cognizance of a complaint merely on the ground that earlier he had declined to take cognizance of police report. The judgment was followed by a three-Judge Bench judgment of this Court
Arguments
Heard Ms. Amrita Sinha, the learned counsel appearing on behalf of the petitioner, Mrs. Priya Shrestha, the learned counsel appearing on behalf of the respondent State and Mr. Nilesh Kumar, the learned counsel appearing on behalf of the Jharkhand Urja Vikas Nigam Limited (JUVNL). 2. This petition has been filed for quashing of the entire criminal proceeding including the order dated 09.04.2015 arising out of Complaint Case No.874 of 2009, T.R. No.275 of 2015, pending in the court of learned Special Judge, Electricity Act, Hazaribagh. 3. The protest cum complaint case is filed alleging therein that the complainant is informant of Sadar (Muffasil) P.S. Case No. 155/08 dated 15.2.08 and being aggrieved by and dissatisfied with the final report as submitted by the I.O. A.S.I. police declaring the case as untrue. It has been alleged that the complainant being posted and discharging his official duties as Assistant Electrical Engineer Supply sub-division Hazairbagh on 2 15.2.08 as well as being a member of anti-power theft team which raided and inspected on 15.2.08 the Electric meter reading consumption of electrical energy in the M/S Shive Shakti Cement Industries Demotand (Morangi) having Electric consumer No. DM-106-HT contract demand 1067