BSES Rajdhani Power Ltd v. State Govt of NCT of Delhi

6. The premises of the respondent no.2, i.e., House near T-Huts 37, Opposite Flat No.37, D/5, Vishal Enclave, New Delhi- 110027, where the alleged offence has been committed, falls within the distribution area of the petitioner. A raid was conducted on 05.01.2022 at about 7:30 AM by the authorized officers of the petitioner company at the said premises of respondent no.2.

7. During inspection, it was found by the officials of the petitioner that respondent no.2 was the user of the said premises and there was no electricity meter installed for the supply of electricity to the said premises. Further, it was revealed that the respondent no.2 was illegally using the electricity by directly tapping from the supply of network of the petitioner from Pole No. TGN-H-006, with the help of two core black cables entering the premises from its back side and further connected to the load of the premises. The same was recorded in the inspection report dated 05.01.2022 which was prepared at the site during inspection.

8. It was further found that there was a total connected load of 5.301KW/DX/DT, i.e., electricity being used for domestic purposes which was recorded in the Load Report dated 05.01.2022 prepared at the site. The team could, however, not seize any of the illegal cables or any material due to resistance by the consumer at the spot and the same was mentioned in the seizure memo prepared at the spot. The team also comprised of a photographer and a CD of the raid was also prepared. The documents prepared at the spot including the inspection report, load report, and seizure memo were handed over to respondent no.2 at the spot but respondent no.2 refused to receive/sign them.

9. A theft bill dated 07.01.2022 was raised by the petitioner against respondent no.2 for Rs. 1,05,805/- (Rupees One Lakh Five Thousand Eight Hundred and Five only).

10. Thereafter, the petitioner filed the criminal complaint on 27.5.2022 against respondent no.2 alleging direct theft of electricity by the respondent no.2 at her premises. The matter was first taken up on 6.6.2022 and the petitioner company was called upon by the court to lead pre-summoning evidence.

11. The officials of the petitioner/complainant, who had inspected the premises earlier, re-visited the said premises on 10.07.2023 and found the premises number where theft was detected was B-37, which is situated near T-Huts 37, Opposite Flat No.37, D/5, Vishal Enclave, New Delhi-110027.

12. Likewise, with respect to other criminal complaints, the premises of the respective accused persons were re-visited by the officials of the petitioner/ complainant and the exact address was verified. The address in the complaint, as well as, the verified address of the premises where the electricity theft was found to be committed are as under: CRL. REV. PET. 830/2023 [arising out of CC No. 894/2022] CRL. REV. PET. 833/2023 [arising out of CC No. 1085/2022] Address in Complaint Verified Address in Application House near T-Huts-37, Opposite Flat No.: 37, D-5, Vishal Enclave, New Delhi -110027 House No.: B-37 near T-Huts-37, Opposite Flat No.: 37, D-5, Vishal Enclave, New Delhi-110027. Premises Opposite to RZ-C-112-B, Ground to Second Floor, Gali No.: 09, Vishnu Garden, New Delhi- 110018. Premises No.: RZ-C-123, Opposite to RZ-C-112-B, Ground to Second Floor, Gali No.: 09, Vishnu Garden, New Delhi - 110018. CRL. REV. PET. 886/2023 [arising out of CC No. 1411/2022] CRL. REV. PET. 890/2023 [arising out of CC No. 1487/2022] CRL. REV. PET. 891/2023 [arising out of CC No. 1045/2022]

13. After verification of the address, applications were filed by the petitioner/complainant in all the complaints seeking to furnish better particulars/identification of the premises of the accused persons.

14. In the complaint case i.e. CC No. 894/2022 giving rise to the CRL. REV. P. 830/2023, the amendment application was filed on 12.07.2023. The application was taken up for hearing by the Special Court on the same day itself and was dismissed on the ground that the address upon which the raid was conducted, intimation with respect to the raid was posted and the socalled theft bill was posted/served upon the accused is entirely different from the address which is sought to be incorporated by virtue of amendment House opposite to L-2/23 Ground Floor & First Floor, New Mahabir Nagar, New Delhi-110018. House No.: L-2/32, Ground Floor and First Floor, New Mahabir Nagar, New Delhi-110018. Premises Right Hand Side to House No.: 12, Ground Floor to Top Floor, Khasra No.: 38/6/15, Rajindra Park, Nangloi, New Delhi-110041 House No.:12, Ground Floor to Top Floor, Khasra No.: 39/6/1, Rajindra Park Extension, Nangloi, New Delhi- Jhuggi Right hand side of Jhuggi No.: W-02/R-18, Ground Floor and First Floor, B-1 Block, Raghubir Nagar, New Delhi-110027. House No.: B-1/144, B[1] Block, Ground Floor and First Floor, JJ Colony, Raghubir Nagar, New Delhi-110027 application and the same entirely negates the case of the complainant with respect to the alleged theft, as well as, goes to the root of the present complaint.

15. Simultaneously, the complaint filed by the petitioner/complainant was also dismissed on the following premise:

16. The learned senior counsel appearing on behalf of the petitioner submits that the premises are situated in an unauthorized colony where the houses do not have municipal house numbers and it is very difficult to ascertain the house numbers, therefore, the SOP that is followed by the petitioner is to identify the number of premises with reference to validly installed meters in nearby or adjacent premises.

17. He submits that videography and photography was done by the inspection team at the time of conducting the raid, however, at the stage of pre-summoning evidence the officials of the petitioner re-visited the premises to find out the exact address of the premises and to particularize the location. Accordingly, applications were filed seeking amendment along with the re-verification report.

18. He submits that the complaints were at the pre-summoning stage and the Special Court ought to have allowed the amendment as no prejudice was being caused to the other side by such amendment.

19. He submits that evidence in the form of statements of CW[1] and CW[2] was available on record which prima facie proves that the accused persons had indulged in offence of direct theft of electricity in terms of Section 135 of the Electricity Act, 2003.

20. He submits that insofar as the observation of the Special Court that the inspection team could have seized the illegal wires from outside the inspected premises but the same was not done, is contrary to the law laid down by this Court in Mukesh Rastogi Vs. North Delhi Power Limited, 2007 (99) DRJ 108, wherein it was held that non-seizure of materials is not a fatal defect in a prosecution under Section 135 of the Electricity Act, 2003.

21. As far as the finding of the Special Court to the effect that the load sheet showing different appliances allegedly being used by the accused does not tally with the videography contained in the CD, the learned senior counsel submits that it is a matter of trial and at the pre-summoning stage such a detailed appreciation of evidence is not contemplated under Section 200 CrPC.

22. Per contra, learned APP has supported the findings recorded in the impugned orders. He submits that the amendment sought by the petitioner before the Special Court is not formal in nature. He further submits that the address upon which the raid was conducted and the address which is sought to be incorporated by way of amendment, are entirely different.

23. I have heard the learned counsel for the petitioner, as well as, the learned APP for the State, and have perused the record.

24. It is not in dispute that the complaint was at the pre-summoning stage and cognizance had not been taken by the Special Court. Further, it is beyond doubt that there is no provision in the Code of Criminal Procedure providing for amendment of the complaint. Against this backdrop, the question that has to be considered is whether any amendment in the complaint is permissible under law.

25. This question need not detain this Court any longer, in as much as, the Hon'ble Supreme Court in S.R. Sukumar Vs. S. Sunaad Raghuram, AIR 2015 SC 2757 relying upon the decision in UP Pollution Control Board Vs. Modi Distillery and Ors., AIR 1988 SC 1128, re-stated the legal position in this regard, in the following terms:

26. Clearly, an amendment of a complaint is permissible when – (i) cognizance has not been taken, (ii) the amendment does not change the original nature of the complaint, (iii) where an amendment sought relates to an infirmity which is curable by means of formal amendment, and (iv) where such amendment does not cause prejudice to the accused / the other side.

27. Tested on the touchstone of aforesaid principles, it appears that the application of the petitioner did not seek to change the address of the inspected premises but only sought to provide better particulars of the inspected premises for its exact identification, which is a curable infirmity.

28. Even otherwise, the amendment does not go to the root of the matter as it is only formal in nature and does not change the original nature of the complaint which is a complaint under Section 135 of the Electricity Act,

2003. Further, the Code of Criminal Procedure like all procedural laws, is designed to further the ends of justice and not to frustrate them by introduction of endless technicalities.[1] Therefore, absence of specific provision in Code of Criminal Procedure, 1973 cannot be an impediment for allowing an amendment of the complaint at the pre-summoning stage to cure a formal defect in the complaint.

29. That apart, cognizance had not been taken and no prejudice was likely to be caused to the accused in case the amendment was allowed. This being the position, the Special Court erred in law while dismissing the application of the petitioner seeking formal amendment.

30. Insofar as the dismissal of the complaint is concerned, it appears that the Special Court has embarked upon detailed appreciation of evidence which is not contemplated at the stage of summoning. The Special Court was only expected to examine the pre-summoning evidence which was available in the form of the statement of CW[1], CW[2] and other exhibits to find out whether based on prima facie impression of the said material, an element of criminality is there for issuance of process, subject to determination at the stage of trial.

31. The Special Court ought not to have delved deep into the comparative examination of load sheet and the videography available on the record in the form of CD. The detailed conciliation of appliances in the load sheet and the videography is essentially a matter of trial and consideration of factual controversy in that regard at the stage of summoning will not be a judicious approach. The Special Court is not required to evaluate the merits of the material or evidence in support of the complaint, because the Special Court must not undertake an exercise to find out whether the material would lead to conviction or not. AIR 1956 SC 116

32. The question as to whether non-seizure of illegal wires etc., is a fatal defect in a prosecution under Section 135 of the Electricity Act, 2003 is also no more res integra. This Court in Mukesh Rastogi (supra) dealing with a similar question has observed that the Court has only to see whether theft has been proved by cogent evidence or not and mere non-production of the wires cannot fail the prosecution’s case, if the theft of electricity is otherwise proved. The relevant paragraph of the afore-noted judgment read as under:-

xxxx xxxx

8. It has to be kept in mind that the conclusion of theft by the Trial Court cannot be made merely on the basis of an inspection report. If the law had been that the inspection report in itself was conclusive evidence of the theft of electricity and no further evidence was required, it would have been possible for the counsel for the appellant to argue that since the inspection report was the conclusive evidence of theft, the inspection report must strictly comply with the rules. Inspection of the premises is merely a mean to detect the theft of electricity and to find the means by which the electricity was being stolen. Inspection Report is merely a piece of evidence and inspection report is not considered as a conclusive proof of the theft of electricity. The theft of electricity has to be proved by the complainant in the Court by cogent evidence therefore, the validity of the inspection report cannot be attached too much of importance. Similarly, non-production of the single core PVC wires through which electricity was being stolen is not a serious infirmity in this case since there is sufficient oral testimony supported by photographs showing the theft of electricity. The appellant has stated that the name of 'the photographer and copies of photographs ·were not supplied to him before hand. It is submitted by the counsel for the complainant that the photographs were of the premises of the appellant and there was apprehension to the life of the photographer, therefore his name was not disclosed. There is force in the submission. There was a likelihood of the photographer being put to a danger of life. Photographer was not an employee of the complainant company and it was an obligation of NDPL to keep the safety of photographer in mind........... "

33. The non-production of the wires etc. would warrant dismissal of the complaint only when the complainant fails to prove its case with other cogent evidence. To be noted, that material in the form of the statements of CW[1], CW[2], the videography, the inspection report and other material is available on record which ought to have been examined by the Special Court independently to arrive at a conclusion whether the material prima facie discloses the offence alleged against the accused warranting issuance of process. However, the manner in which the Special Court has non-suited the complainant without considering the complaint and the evidence in support thereof, is not justified.

34. It is settled law that the Magistrate, at the stage of taking cognizance and summoning, is required to apply his judicial mind only with a view to taking cognizance of the offence, or in other words, to find out whether a prima facie case has been made out for summoning the accused persons. The learned Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint, because the Magistrate must not undertake the exercise to find out whether the materials would lead to a conviction or not.[2]

35. In view of the aforesaid discussion, the present petitions are allowed and the impugned orders are quashed and set aside. Accordingly, the applications seeking to furnish better particulars / identification of the premises of the accused persons are allowed. Let amended complaints, as well as, amended memo of parties be filed.

36. Consequently, the matters are remanded back to the Special Court and the Special Court is directed to proceed with the amended complaints in accordance with law.

37. The petitions stand disposed of.

38. Order be uploaded on the website of this Court.