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W.P.(crl.) No. 113/2013 Page 1 HIGH COURT OF DELHI
W.P.(CRL) 113/2013 & Crl.
M.A. No. 764/2013
SURENDER KUMAR ..... Petitioner
Through: Advocate (appearance not given)
W.P.(CRL) 113/2013 & Crl.
M.A. No. 764/2013
SURENDER KUMAR ..... Petitioner
Through: Advocate (appearance not given)
VERSUS
STATE & ANR. ..... Respondents
Through: Mr. Dayan Krishnan, Additional
Standing Counsel for respondent –
State & Ms. Manvi Priya, Advocate Mr. Manish Srivastva & Mr. K. Datta, Advocate for respondent No.2/BSES
Through: Mr. Dayan Krishnan, Additional
Standing Counsel for respondent –
State & Ms. Manvi Priya, Advocate Mr. Manish Srivastva & Mr. K. Datta, Advocate for respondent No.2/BSES
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 22.01.2013
In a case of direct theft of electricity for industrial purpose, the loss caused has been estimated at `27lacs odd and while releasing petitioner on bail, the trial court has imposed the condition of deposit of `5lacs. However, trial court in its wisdom had granted fifteen days’ time from the day of release of petitioner, to deposit the amount of `5lacs.
Petitioner, after obtaining his release, had sought extension of time to pay the conditional bail amount while expressing readiness to pay sum of
`2lacs with a request to pay the balance amount within a period of thirty days. The aforesaid application was accepted by the trial court and time was granted to petitioner, who cleverly moved another application stating that such a condition cannot be imposed.
2013:DHC:360 W.P.(crl.) No. 113/2013 Page 2 In the impugned order of 20th December, 2012 the trial court has chosen not to rely upon a decision of a Single Bench of this Court in H.S.
Pannu Vs. Govt. of NCT of Delhi & Anr. 2007 (4) JCC 2947, but has relied upon latter decision of this Court in Sanjit Malik & Anr. Vs. The State (NCT of Delhi) & Ors. 2008 (2) JCC 793, in which it was held that special court has power to impose condition in cases where person/ accused is found to be committing offence under The Electricity Act, 2003. While holding so, in
Sanjit Malik’s case (Supra), reliance was placed upon Apex Court decision in Chakrawarti Prasad Vs. State of Bihar 2002 (10) SCC 390.
Learned counsel for petitioner asserts that electricity meter was very much there and there was no question of petitioner resorting to direct theft of electricity and so, imposition of condition of payment of `5lacs while granting bail is unjustified.
Respondents’ counsel refutes the aforesaid plea advanced on behalf of petitioner and submits that infact there was direct theft of electricity and imposition of such condition, as the instant one, has deterrent effect and so, the same ought not be waived, as imposition of such a condition stands approved in Sanjit Malik (Supra).
The parameters governing exercise of power have been spelt out by the Apex Court in Mary Angel v. State of T.N. (1999) 5 SCC 209 in following words:-
‘12. From the aforesaid decisions, it is apparent that if there is an express provision governing the particular subject-matter then there is no scope for invoking or exercising the inherent powers of the Court because the Court is required to apply, in the manner and mode prescribed, the provisions of the statute which are made to govern the particular subject-matter. But the
W.P.(crl.) No. 113/2013 Page 3 highest court in the State could exercise inherent powers for doing justice according to law where no express power is available to do a particular thing and express powers do not negative the existence of such power. It is true that under the
Criminal Procedure Code, specific provisions for awarding costs are only those as stated above. At the same time, there is no specific bar that in no other case, costs could be awarded.
Further, in non-cognizable cases, Section 359 empowers the courts including the appellate court or the High Court or the
Court of Session while exercising its powers of revision to order the convicted accused to pay to the complainant, in whole or in part, the cost incurred by him in the prosecution including the expenses incurred in respect of process fees, witnesses and pleaders' fees which the Court may consider reasonable. Hence, it may be inferred that in a cognizable case and in an appeal or revision arising therefrom, the High Court cannot exercise its inherent power for awarding costs dehors the said provisions.
But such an inference is not possible in cases where the Court is exercising powers under Section 482. It is to be stated that in cognizable cases also under Section 357 while awarding compensation out of the fine imposed on the accused, inter alia, the Court is required to take into consideration expenses properly incurred in the prosecution. Hence, exercise of such power would, on the contrary, be in conformity and not in conflict with the powers conferred under Sections 148(3), 342 and 357 or 359 of the Cr.P.C. In appropriate cases, where it is necessary to pass such an order, the Court may award costs for the purposes, namely, (i) to give effect to any order passed under the Court, (ii) to prevent abuse of the process of any court, and
(iii) to secure the ends of justice as there is no
(a) negative provision for exercise of “such power”, and
(b) inconsistency with the other provisions.
Further, awarding of costs, as stated above, can be for two purposes, one for meeting the litigation expenses and, secondly, for preventing the abuse of the process of court or to do justice in a matter and in such circumstances, costs can be exemplary. It
W.P.(crl.) No. 113/2013 Page 4 is true that this jurisdiction is to be exercised sparingly for the aforesaid purposes in most appropriate cases and is not limitless but is to be exercised judiciously.’
Reliance placed by petitioner’s counsel upon decision in S.L.P(Crl.)
4673/2012, Rakesh Gupta Vs. State of NCT of Delhi, rendered on 29th October, 2012 is of no avail, as the said case was of cheating.
Upon hearing both sides and on perusal of impugned order and the material on record, I find that no doubt such a condition has to be imposed not in routine but in appropriate cases. Since it appears to be a prima facie case of direct theft for industrial purpose and what petitioner/ accused has been called upon to pay is just a reasonable amount, which respondent would be under legal obligation to refund if petitioner ultimately succeeds in obtaining acquittal, therefore, in the considered opinion of this Court, imposition of condition to pay a sum of `5lacs appears to be reasonable one.
Such a view has been taken because petitioner cannot be allowed to wriggle out of his earlier stand of agreeing to pay `2lacs immediately and to pay the balance i.e. `3lacs within a period of thirty days.
In view of aforesaid, this petition is dismissed while permitting the petitioner to deposit a sum of `2lacs with respondent-BSES within a week and to pay the remaining `3lacs within a period of four weeks, failing which grant of conditional bail to petitioner shall cease to exist. In case petitioner fails to comply with this Order, he be taken into custody forthwith. Trial court be apprised of this Order forthwith to ensure its compliance.
With aforesaid directions, this petition and application are disposed of.
(SUNIL GAUR)
W.P.(crl.) No. 113/2013 Page 5 JUDGE JANUARY 22, 2013 rs
In a case of direct theft of electricity for industrial purpose, the loss caused has been estimated at `27lacs odd and while releasing petitioner on bail, the trial court has imposed the condition of deposit of `5lacs. However, trial court in its wisdom had granted fifteen days’ time from the day of release of petitioner, to deposit the amount of `5lacs.
Petitioner, after obtaining his release, had sought extension of time to pay the conditional bail amount while expressing readiness to pay sum of
`2lacs with a request to pay the balance amount within a period of thirty days. The aforesaid application was accepted by the trial court and time was granted to petitioner, who cleverly moved another application stating that such a condition cannot be imposed.
2013:DHC:360 W.P.(crl.) No. 113/2013 Page 2 In the impugned order of 20th December, 2012 the trial court has chosen not to rely upon a decision of a Single Bench of this Court in H.S.
Pannu Vs. Govt. of NCT of Delhi & Anr. 2007 (4) JCC 2947, but has relied upon latter decision of this Court in Sanjit Malik & Anr. Vs. The State (NCT of Delhi) & Ors. 2008 (2) JCC 793, in which it was held that special court has power to impose condition in cases where person/ accused is found to be committing offence under The Electricity Act, 2003. While holding so, in
Sanjit Malik’s case (Supra), reliance was placed upon Apex Court decision in Chakrawarti Prasad Vs. State of Bihar 2002 (10) SCC 390.
Learned counsel for petitioner asserts that electricity meter was very much there and there was no question of petitioner resorting to direct theft of electricity and so, imposition of condition of payment of `5lacs while granting bail is unjustified.
Respondents’ counsel refutes the aforesaid plea advanced on behalf of petitioner and submits that infact there was direct theft of electricity and imposition of such condition, as the instant one, has deterrent effect and so, the same ought not be waived, as imposition of such a condition stands approved in Sanjit Malik (Supra).
The parameters governing exercise of power have been spelt out by the Apex Court in Mary Angel v. State of T.N. (1999) 5 SCC 209 in following words:-
‘12. From the aforesaid decisions, it is apparent that if there is an express provision governing the particular subject-matter then there is no scope for invoking or exercising the inherent powers of the Court because the Court is required to apply, in the manner and mode prescribed, the provisions of the statute which are made to govern the particular subject-matter. But the
W.P.(crl.) No. 113/2013 Page 3 highest court in the State could exercise inherent powers for doing justice according to law where no express power is available to do a particular thing and express powers do not negative the existence of such power. It is true that under the
Criminal Procedure Code, specific provisions for awarding costs are only those as stated above. At the same time, there is no specific bar that in no other case, costs could be awarded.
Further, in non-cognizable cases, Section 359 empowers the courts including the appellate court or the High Court or the
Court of Session while exercising its powers of revision to order the convicted accused to pay to the complainant, in whole or in part, the cost incurred by him in the prosecution including the expenses incurred in respect of process fees, witnesses and pleaders' fees which the Court may consider reasonable. Hence, it may be inferred that in a cognizable case and in an appeal or revision arising therefrom, the High Court cannot exercise its inherent power for awarding costs dehors the said provisions.
But such an inference is not possible in cases where the Court is exercising powers under Section 482. It is to be stated that in cognizable cases also under Section 357 while awarding compensation out of the fine imposed on the accused, inter alia, the Court is required to take into consideration expenses properly incurred in the prosecution. Hence, exercise of such power would, on the contrary, be in conformity and not in conflict with the powers conferred under Sections 148(3), 342 and 357 or 359 of the Cr.P.C. In appropriate cases, where it is necessary to pass such an order, the Court may award costs for the purposes, namely, (i) to give effect to any order passed under the Court, (ii) to prevent abuse of the process of any court, and
(iii) to secure the ends of justice as there is no
(a) negative provision for exercise of “such power”, and
(b) inconsistency with the other provisions.
Further, awarding of costs, as stated above, can be for two purposes, one for meeting the litigation expenses and, secondly, for preventing the abuse of the process of court or to do justice in a matter and in such circumstances, costs can be exemplary. It
W.P.(crl.) No. 113/2013 Page 4 is true that this jurisdiction is to be exercised sparingly for the aforesaid purposes in most appropriate cases and is not limitless but is to be exercised judiciously.’
Reliance placed by petitioner’s counsel upon decision in S.L.P(Crl.)
4673/2012, Rakesh Gupta Vs. State of NCT of Delhi, rendered on 29th October, 2012 is of no avail, as the said case was of cheating.
Upon hearing both sides and on perusal of impugned order and the material on record, I find that no doubt such a condition has to be imposed not in routine but in appropriate cases. Since it appears to be a prima facie case of direct theft for industrial purpose and what petitioner/ accused has been called upon to pay is just a reasonable amount, which respondent would be under legal obligation to refund if petitioner ultimately succeeds in obtaining acquittal, therefore, in the considered opinion of this Court, imposition of condition to pay a sum of `5lacs appears to be reasonable one.
Such a view has been taken because petitioner cannot be allowed to wriggle out of his earlier stand of agreeing to pay `2lacs immediately and to pay the balance i.e. `3lacs within a period of thirty days.
In view of aforesaid, this petition is dismissed while permitting the petitioner to deposit a sum of `2lacs with respondent-BSES within a week and to pay the remaining `3lacs within a period of four weeks, failing which grant of conditional bail to petitioner shall cease to exist. In case petitioner fails to comply with this Order, he be taken into custody forthwith. Trial court be apprised of this Order forthwith to ensure its compliance.
With aforesaid directions, this petition and application are disposed of.
(SUNIL GAUR)
W.P.(crl.) No. 113/2013 Page 5 JUDGE JANUARY 22, 2013 rs
JUDGMENT