1 Criminal Application No.5253/2010 with Criminal Application No.5078/2010 with Criminal Application No.5076/2010 with Criminal Application No.5205/2010 with Criminal Application No. 5066/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.5253 OF 2010 Milind s/o Dhaulatrao Patil & anr. ... APPLICANTS VERSUS The State of Maharashtra . ... RESPONDENT ..... Shri P.R. Katneshwarkar, Advocate for applicants Shri V.H. Dighe, A.P.P. for respondent ..... W I T H CRIMINAL APPLICATION NO.5078 OF 2010 Shri Rajendra Bhavrao Patil ... APPLICANT VERSUS The State of Maharashtra . ... RESPONDENT ..... Mrs. S.A. Savale, Advocate for applicant Shri V.H. Dighe, A.P.P. for respondent ..... W I T H CRIMINAL APPLICATION NO.5076 OF 2010 Dagaji Dhudku Patil & anr. ... APPLICANTS VERSUS 2 Criminal Application No.5253/2010 with Criminal Application No.5078/2010 with Criminal Application No.5076/2010 with Criminal Application No.5205/2010 with Criminal Application No. 5066/2010 The State of Maharashtra . ... RESPONDENT ..... Shri P.R. Katneshwarkar, Advocate for applicants Shri V.H. Dighe, A.P.P. for respondent ..... W I T H CRIMINAL APPLICATION NO.5205 OF 2010 Rambhabai w/o Vinayak Patil ... APPLICANT VERSUS The State of Maharashtra . ... RESPONDENT ..... Shri P.R. Katneshwarkar, Advocate for applicant Shri V.H. Dighe, A.P.P. for respondent ..... W I T H CRIMINAL APPLICATION NO.5066 OF 2010 Ramrao s/o Chaitram Patil ... APPLICANT VERSUS The State of Maharashtra . ... RESPONDENT ..... Shri P.R. Katneshwarkar, Advocate for applicant Shri V.H. Dighe, A.P.P. for respondent ..... 3 Criminal Application No.5253/2010 with Criminal Application No.5078/2010 with Criminal Application No.5076/2010 with Criminal Application No.5205/2010 with Criminal Application No. 5066/2010 CORAM : K.U. CHANDIWAL, J. DATE : 13th January, 2011 PER COURT : 1. Heard the learned counsel for the respective applicants/ accused and learned A.P.P. extensively. Perused the police papers. 2. In Crime No.332/2010, registered at Shirpur Police Station, District Dhule for the offence punishable under Sections 143, 323, 353, 332, 395, 504,506 of the Indian Penal Code and Section 135(1) of the Electricity Act, 2003, the accused/ applicants seek exercise of powers under Section 438 of the Criminal Procedure Code. 3. In the wee hours of 9.11.2010, the complainant with other members of his raiding party of the Electricity Company, MSEDL, barged in the village at Hingoni. By that time, it was around 5.30 a.m. The officials were causing inspection, drawing Videograph of the events as the matter involved to tampering of electricity meter, user of electricity by tapping, user of loop connections and even magnetic devise to detract the meter reading, 4 Criminal Application No.5253/2010 with Criminal Application No.5078/2010 with Criminal Application No.5076/2010 with Criminal Application No.5205/2010 with Criminal Application No. 5066/2010 interfering with the accurate or proper registration of the electricity. In such exercise of the powers, the accused/ applicants surfaced the team was lead by the Police Patil. They questioned the authority of the complainant and his colleagues for the inspection and to videograph the so called illegal activities. This gave rise to commotion, Videographer was manhandled and suffered injuries, his videography camera was snatched including the official record which the raiding tem was carrying. This gave rise to the above offences. 4. The learned counsel for the accused/ applicants submit that the very activities of causing raid by the officials was in contravention of the mandate in terms of Section 135 of the Electricity Act, 2003 being not between sunrise and sunset, as it was taken place at around 5.30 a.m. The officers were not authorised to carry any raid and hence, infraction vitiates the prosecution against the accused/ applicants. 5. In order to stress his point, the learned counsel has placed reliance to the judgment of this Court in the matter of Vijay Bhagwan Shetty Vs. State of Maharashtra (2008 B.C.I. 82). 6. There cannot be a quarrel on the legal proposition in 5 Criminal Application No.5253/2010 with Criminal Application No.5078/2010 with Criminal Application No.5076/2010 with Criminal Application No.5205/2010 with Criminal Application No. 5066/2010 respect of powers vested in the authorities and the obligations cast on them as ordained under the Electricity Act, 2003. Any breach thereof will have its ramifications at the trial. This Court is dealing with the situation in terms of powers under Section 438 of the Criminal Procedure Code, whether custodial interrogation is required particularly to maintain fabric of legal system to remain intact. 7. The affairs of committing the theft of electricity, tapping, using device to stop the registration of the electricity meter, is added by a desperate approach restraining the raiding party, manhandling them, snatching away the instrument of videograph, threatening, abusing and injuring the videographer. The statement of Ashok, Sunil and Narayan specifically name Rajendra, applicant in Criminal Application No.5078/2010, Milind, applicant in Criminal Application No.5253/2010, Ramrao, applicant in Criminal Application No. 5066/2010. Therefore, it is difficult to digest that the names of the accused/ applicants herein referred above are not emerging in the F.I.R. It is indeed correct, reading the F.I.R. the names of two dead persons are recorded, which though illustrate that proper care should have been taken, however, it would not dilute the prosecution. The recording of names is occasioned due to the electricity meters in the names of such persons. However, presence 6 Criminal Application No.5253/2010 with Criminal Application No.5078/2010 with Criminal Application No.5076/2010 with Criminal Application No.5205/2010 with Criminal Application No. 5066/2010 of present accused persons at the spot need not be doubted. The statement of witnesses are not illusory. The custodial interrogation is imperative as recovery is to be made and a chaos was created to protect and preserve illegality. In the set of above facts, the applications are rejected. The observations are prima facie in nature. K.U. CHANDIWAL JUDGE fmp/cri525310