IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.48295 of 2007 1. PURUSHOTTAM PRASAD, SON OF LATE RAM LAKHAN RAM, ELECTRICAL EXECUTIVE ENGINEER, BEGUSARAI, P.S.+ TOWN+ DISTRICT BEGUSARAI. 2. MITHILESH KUMAR SINGH, SON OF LATE DEV KUMAR SINGH, ELECTRIC SUPPLY SECTION POWER HOUSE, BEGUSARAI. 3. R.O.PRASAD @ RAM NARESH PRASAD, SON OF SRI MAHENDRA PRASAD, ASSTT. ELECTRICAL ENGINEER, BEGUSARAI, RESIDENT OF VILLAGE- PARASI, P.S. NOOR SARAI, DISTRICT NALANDA. …PETITIONERS Versus 1. STATE OF BIHAR 2. UMESH PODDAR, SON OF LATE JAMUN PODDAR, RESIDENT OF PASPURA, P.S. BEGUSARAI MUFFASIL, DISTRICT-BEGUSARAI, AT PRESENT BEGUSARAI COLD STORAGE, GOSALA ROAD, BEGUSARAI. ..OPPOSITE PARTIES. For the Petitioners :Mr. Vinay Kirti Singh, Advocate For O.P.No.2 :Mr. S.D.Sanjay, Advocate ----------- 07. 23.03.2010 Heard counsel for the parties. The petitioners who claim to be the officials of the Bihar State Electricity Board, assail the order dated 9.02.2007, passed by the learned Judicial Magistrate, 1st Class, Begusarai in Complaint Case No.802(C)/2006 (Umesh Poddar Vs. Purushottam Prasad & Ors.). By the said order, the learned Magistrate, on perusal of the complaint and the materials collected in course of enquiry, has found that a prima facie allegation/case exists to proceed in the case against the accused person(s) for offences allegedly committed under sections 147,323 and 341 IPC. Petitioner no.1 is the Electrical Executive Engineer. Petitioner no.2 is Addl. Asstt. Electrical Engineer, whereas petitioner no.3 is the Assistant Electrical Engineer of the Bihar State Electricity Board. As per the complaint (Annexure-1), on the date of the occurrence, i.e., 9.05.2006, these accused persons entered into the - 2 - business premises (cold storage) of one Shri Murari Mohan Maskara. They had arrived with a blank piece of paper. The owner of the cold storage was commanded to sign the said document/paper which was, however, refused. This enraged the petitioners and they started abusing him(proprietor of the cold storage) left and right in presence of the complainant and other persons/staffs who had assembled there. The allegation further is that he was also manhandled and his signature was forcibly obtained on the said blank piece of paper. The accused persons left the business premises of the employer of the complainant with a warning to sue them for the offences. An attempt was made to lodge a case but the local police station did not record the same. Resultantly, the present complaint was lodged on 15.05.2006 with the allegation aforementioned. The matter was enquired into. In course of enquiry, the statement of the complainant on solemn affirmation( S.A.) was recorded and two witnesses were examined who supported the case. In these circumstances, the learned Magistrate passed the impugned order. Learned counsel for the petitioners submits that the present proceeding is belated and malicious. Prior to lodging of the present complaint, petitioner no.2 had lodged an FIR against the owner of the cold storage in question, vide Begusarai Town P.S.Case No.134/2006 under section 379 IPC read with sections 39/44 of the Electricity Act. It is next contended that the petitioners being the officers of the Electricity Board, are the public servants and, as such, they have certain protection in law. Opposite party no.2 contested the application and has - 3 - placed on record the counter affidavit. Section 168 of the Electricity Act,2003 which admittedly holds the filed, reads as under: “Protection of action taken in good faith.- No suit, prosecution or other proceeding shall lied against the Appropriate Government or Appellate Tribunal or the Appropriate Commission or any officer of Appropriate Government, or any Member, Officer or other employee of the Appellate Tribunal or any Members, officer or other employees of the Appropriate Commission or the assessing officer or any public servant for anything done or in good faith purporting to be done under this Act or the rules or regulations made thereunder.” It appears from the counter affidavit that prior to lodging of the present complaint, the owner of the business premises/cold storage had lodged an informatory petition (Informatory Case No.884/2006 dated 23.03.2006) alleging therein that the Electrical Executive Engineer, Electricity Board, Begusarai and other accused persons, were constantly exerting pressure on him to extend the load of the business premises and/or to get the connection transformed into H.T. connection from L.T. connection and they were constantly threatening him with dire consequences. It further appears from the counter affidavit that the police case lodged by petitioner no.2 against the owner of the business premises(cold storage) was found to be wholly untrue and unsubstantiated. Learned counsel for the opposite party no.2 has placed on record the order-sheet of the court below of Begusarai Town P.S.Case No. 134/06. The order dated 26.02.2009 reads thus: - 4 - “The informant takes no step. Heard the learned D.P.O. and perused the case record. The I.O. has submitted F.R. Mistake of facts in this case. The S/R of notice has been received after service. Under the circumstance, the F.F. submitted by the I.O. is hereby accepted.” It further appears from the record that the matter regarding excess load connection in the business premises in question ultimately reached the Consumer Grievance Redressal Forum which is an authority created under section 42(5) of the Electricity Act,2003. While considering the said matter, the Forum in its order found and held as under: “When C.T. connection of all the three CT was reported as found opened, then there is no question of Meter-running, which creates suspicion and confusion and it clearly proves that team of officials of inspection has erred on this account, as there is no any possibilities of Meter-running, when all the three C.T’s connection were opened.” Learned counsel for the opposite parties submits that arrival of the accused persons at the place of occurrence and thereafter lodging a case against the present complainant cannot be said to be bonafide in the attending facts of the case. On consideration of the submissions made on behalf of the parties and after perusal of the materials on record, this Court is of the view that protection of any action taken in good faith is only protected in law. Whether the action of the petitioners can be said to be in good faith or not, is essentially a question of fact which shall be gone into, if raised, at the appropriate stage. Learned Magistrate has considered the materials on record and has come to a definite conclusion that - 5 - allegations do constitute offence(s) punishable under diverse sections of the Penal Code and has, therefore, taken cognizance of the offence in order to proceed with the trial. This Court finds no infirmity in the order impugned. There is no merit in this application which is accordingly dismissed. hr ( Kishore K. Mandal )