BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. M.P. No . ^} Of2010 Applicant Accused ^^ ^d^'" ^^y^~ •\" ..•€> Non-applicant Complainant 8ln||teB®"^ Diwakar Singh, Son of Bhaiyaram Thakur, aged about 28 years, R/o. C/o. House of Yamini Bai Dewangan, Nayapara, Durg Police Station, Tahsil and District Durg (C.G.) Versus C.G. State Electricity Board, through T.N.Biju, Son of T.K.Narayan, aged about 40 years, Junior Engineer, Durg City Distribution Centre, DistrictDurg(C.G.) APPLICATION UNDER SECTION 482 OF CODE OF CRIMINAL PROCEDURE. 1973 HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Cr.iVI.P. No. 291 of2010 APPLICANT RESPONDENT VERSUS DiwakarSingh C.G. State Electricity Board. r^y. Post for pronouncement of order on ~J .7.2010 Sd/- Pritinker Diwakar Judge ".Si^B-'-A. /^^' S!'ig' "* ^.'*;-g igi@S %^'•^s^-I ^z HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. h/lr. Justice Pritinker Diwaker) Cr.M.P. No. 291 of 2010 APPLICANT RESPONDENT VERSUS Diwakar Singh C.G. State Electricity Board. Shri H.B. Agrawal learned Sr. counsel with Shri Pankaj Agrawal for the applicant. Shri Abhishek Sinha counsel for respondent. PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE. ORDER ( 7 .07.2010) Present petition is directed against the order dated 2.1.2009 passed by Special Judge, Durg in Special Case No. 4/2008 taking cognizance of the complaint made by the respondent against the applicant under Section 135 of the Electricity Act, 2003. The applicant has mainly following two gnevances: (i) that the Junior Engineer of the Electricity Board is not competent and authorized to file the complaint; and (ii) Complainant and his witnesses have not been examined before the registration ofthe complaint as per Section 200 of the Code of Criminal Procedure and hence the proceedings are vitiated. 2. Facts of the case in brief are that on 22.9.2008 vigilance team of the State Electricity Board headed by the Executive Engineer had searched the premises of the accused/applicant and found that electric meter was tampered, its seal was broken and the 10 HP flour mill and one HP Alienate were running by siphoning the electrical energy. On 2.1.2009 an offence ynder Section 135 of the Electricity Act was found to have been committed. Thereafter, a written complaint along with requisite documents was filed before the Special Judge, Durg. On 2.1.2009 itself, on due consideration of the complaint and the documents filed therewith, a case was registered against the accused/applicant and notice was also issued against him. •rSP^:--... *;;' ^•^:^^fe¥\ s •i^ ^'^;-4^^w t:; ^ ff ^ ^ '^^"y s^s"y & 3. Counsel for the applicant submits that the junior engineer was not competent and authorized to file the complaint and even the statements of the comptainant and his witnesses have not been recorded before registration of the complaint as provided under Section 200 of the Code of Criminal Procedure. He submits that all the witnesses listed in the complaint are not the public servant and therefore, they cannot seek any exemption under Section 200 (1) (a) of the Code of Criminal Procedure. He submits that without recording such statements no complaint can be registered. In support of his submission, reliance is placed on the decisions ofthe Supreme Court in the matter of Ram Krishan and another v. State of Delhi 1956 SC 476, in the matter of Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and another 1963 (2) Cri.L.J. 397, in the matter of Panalal Dampdar Rathi v. State pf IVIaharashtra 1979 CrLL.J. 936 and in the matter of Power Crises in NCT of Delhi v. Union of India and others (2004) 4 SCC 645. 4. Counsel for the respondent however submits that there is a circular dated 18.6.2004 issued under Section 151 of the Electricity Act, 2003 authorizing the Assistant Engineer and Junior Engineer to institute the comptaint and prosecute the same for and on behalf of the Electricity Board and therefore, the submission of the counsel for the applicant is incorrect and there is no substance in it. In sypport of his argument, he has referred to the document of Annexure R-1. He submits that the Electricity Act is a special Act and Chapter XIV thereof deals with the offence and penalties. This chapter includes section 151 providing for taking cognizance only upon a complaint in writing made by the appropriate government or any of their offices authorized by them. According to him, special Court has been created under Chapter XV of the Electricity Act, 2003 and Section 154 thereof lays down the procedure and powers of the Speciat Court. These provisions are notwithstanding anything contained in the Code of Criminal Procedure, 1973. The proceeding is summary and on!y certain provisions of Cr.P.C. are adopted. It has been argued that the complaint so filed is strictly in conformity with the Act of 2003 and there is no requirement of examination of the witnesses before registration of the comptaint as contemplated in the Act of 2003. He argued that the trial Court is fuily justified in taking cognizance if prima facie case is disclosed fc ^wsSis.. 'V. \^ -^fc..,..:.' .^.' ^..^ '••''•" _•:•;'' •••^rs-s.'? - from the complaint and the documents filed therewith. He submits that junior engineer of the Electricity Board is a public servant as contemplated in clause (twelfth)of Section 21 ofthe Indian Penal Code. He relied upon the decision ofthe Supreme Court in the matter of Dy. Chief Controller of Imports & Exports v. Roshanlal Agrawal and others reported in (2003) 4 SCC 139. In the alternative, he submits that even if the complainant has not been examined, this itself would not make the complaint liable for dismissal. He submits that it is merely an irregularity and not an illegality and the same can be cured under Section 464 of the Codeof Criminal Procedure. He placed reliance on the decision of the Calcutta High Court in the matter of Dipak Ghosh Dasudar v. Sanat Kumar Mukherjee reported in 2003 (1) Crimes 297, on the decision of Karnataka High Court in the matter of Durvasa and others v. Chandrakala reported in 1994 Cri.L.J 3765. 5. I find no force in the argument of the applicant that junior engineer is not competent and authorised to filethe complaint because it is apparent from the documents filed by the respondent i.e. circular dated 18.6.2004 (R-1) that the junior engineer is authorized to file a complaint. As regards second point raised by the applicant that the complainant and his witnesses have not been examined before registration of the offence as required under Section 200 of the Code of Criminal Procedure, this Court is of the view that the Electricity Act is a special Act, Chapter XIV deals with offences and penalties, this chapter includes section 151 providing for taking cognizance only upon a complaint in writing made by the appropriate government or any of their offices authorized by them. Speciat Court has been created under part XV ofthe Act of 2003. Section 154 in part XV lays down the procedure and power of the special Court. The provisionsare notwithstanding anything contained in the Code of Criminal Procedure 1973. Furthermore, as per Section 200 of the Code of Criminal Procedure where complaint is made in writing by a pubtic servant acting or purporting to act in discharge of his official duty, there is no need to examine the complainant and his witnesses under Section 200 (a) of the Code of Criminal Procedure. In the case in hand, complaint has been filed by the department through junior engineer of the Electricity Board acting on its behalf in discharge of official duty. Thus the argument that the &'% v^-£.-. complainant and his witnesses have not been examined before registration of the complaint has no substance and cannot be accepted at this stage. Moreover, if a defect is of curable nature, then the entire proceedings do not get vitiated as the parties would still have liberty to do that even during the pendency of the complaint case. 6. In view of above, this Court is of the opinion that petition is without substance and the same is liable to be dismissed. It is accordingly dismissed. Sd/- Pritinker Diwakar Judge