CRL.REV.P./890/2023 of BSES RAJDHANI POWER LTD Vs STATE NCT OF DELHI & ANR.

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$~21, 22, 61 to 63

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%Judgment delivered on: 20.12.2023

+CRL.REV.P. 830/2023

BSES RAJDHANI POWER LTD

..... Petitioner

Through:Mr. Narender Hooda, Sr. Adv. withMr. Rishab Raj Jain, SC, and Mr.Harshal Arora, Mr. Shaurya Lambaand Ms. Rashi Choudhary, Advs.

versus

STATE GOVT OF NCT OF DELHI & ANR...... Respondents

Through:Mr. Raj Kumar, APP for State.

+CRL.REV.P. 833/2023BSES RAJDHANI POWER LTD

..... Petitioner

Through:Mr. Narender Hooda, Sr. Adv. withMr. Rishab Raj Jain, SCand Mr.Harshal Arora, Mr. Shaurya Lambaand Ms. Rashi Choudhary, Advs.

versus

STATE GOVT OF NCT OF DELHI & ANR.

..... Respondents

Through:Mr. Raj Kumar, APP for State.

+CRL.REV.P. 886/2023

BSES RAJDHANI POWER LTD

..... PetitionerThrough:Mr. Narender Hooda, Sr. Adv. withMr. Rishab Raj Jain, SCand Mr.Harshal Arora, Mr. Shaurya Lamba,and Ms. Rashi Choudhary, Advs.

versus

CRL.REV.P. 830/2023 & Connected Matters

Signature Not Verified

STATE NCT OF DELHI & ANR.Through:

..... RespondentsMs. Richa Dhawan, APP for State.

+CRL.REV.P. 890/2023

BSES RAJDHANI POWER LTD..... PetitionerThrough:Mr. Narender Hooda, Sr. Adv. withMr. Rishab Raj Jain, SC, and Mr.Harshal Arora, Mr. Shaurya Lambaand Ms. Rashi Choudhary, Advs.versusSTATE NCT OF DELHI & ANR...... RespondentsThrough:Ms. Richa Dhawan, APP for State.

+CRL.REV.P. 891/2023

BSES RAJDHANI POWER LTD

..... PetitionerThrough:Mr. Narender Hooda, Sr. Adv. withMr. Rishab Raj Jain, SC, and Mr.Harshal Arora, Mr. Shaurya Lambaand Ms. Rashi Choudhary, Advs.

versusSTATE NCT OF DELHI & ANR...... RespondentsThrough:Ms. Richa Dhawan, APP for State.

CORAM:HON'BLE MR. JUSTICE VIKAS MAHAJAN

JUDGMENT

VIKAS MAHAJAN, J.

1.The present criminal revision petitions have been filed by thepetitioner assailing the following impugned orders whereby the amendmentapplications seeking to furnish better particulars, as well as, the complaintcases filed by the petitioner company against various accused persons, weredismissed at the pre-summoning stage by the learned Additional SessionsJudge (Electricity)-01, Central District, Tis Hazari, District Courts, Delhi

(hereinafter referred to as “the Special Court”):

(i)Order dated 12.07.2023 in CC No. 894/2022 (giving rise toCRL. REV. P. 830/2023);CRL. REV. P. 830/2023);

(ii)Order dated 12.07.2023 in CC No. 1085/2022 (giving rise toCRL. REV. P. 833/2023);CRL. REV. P. 833/2023);

(iii)Order dated 20.07.2023 in CC No. 1411/2022 (giving rise toCRL. REV. P. 886/2023);CRL. REV. P. 886/2023);

(iv)Order dated 13.07.2023 in CC No. 1487/2022 (giving rise toCRL. REV. P. 890/2023);CRL. REV. P. 890/2023);

(v)Order dated 20.07.2023 in CC No. 1045/2022 (giving rise toCRL. REV. P. 891/2023).CRL. REV. P. 891/2023).

2.In the above-mentioned complaint cases, amendment application(s)for furnishing better particulars / identification of the premises of theaccused persons (collectively referred to as ‘applications’) were filed by thepetitioner before the issuance of summons i.e., at the stage of pre-summoning evidence.

3.It is the case of the petitioner that in the said applications the officialsof the petitioner/complainant, who had inspected the premises earlier,revisited the said premises again and found the exact number of thepremises. Essentially, the applications were meant to just particularize thepremises on which the inspections were carried out.

4.As the facts of all the five cases being dealt with in the presentjudgment are similar except for the details / number of the premises andfurther since the issue involved is also common, therefore, for the sake ofbrevity, the facts of CRL. REV. P. 830/2023 are being referred to.

5.The petitioner is company engaged in the distribution of electricityin the areas of South and West Delhi, including the area and premises of the

respondent, having its registered office at BSES Bhawan, Nehru Place, NewDelhi-110019.

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 thealleged offence has been committed, falls within the distribution area of thepetitioner. raid was conducted on 05.01.2022 at about 7:30 AM by theauthorized officers of the petitioner company at the said premises ofrespondent no.2.

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

8.It was further found that there was total connected load of5.301KW/DX/DT, i.e., electricity being used for domestic purposes whichwas recorded in the Load Report dated 05.01.2022 prepared at the site. Theteam could, however, not seize any of the illegal cables or any material dueto resistance by the consumer at the spot and the same was mentioned in theseizure memo prepared at the spot. The team also comprised of aphotographer and CD of the raid was also prepared. The documentsprepared at the spot including the inspection report, load report, and seizurememo were handed over to respondent no.2 at the spot but respondent no.2refused to receive/sign them.

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

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

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

12.Likewise, with respect to other criminal complaints, the premises ofthe respective accused persons were re-visited by the officials of thepetitioner/ complainant and the exact address was verified. The address inthe complaint, as well as, the verified address of the premises where theelectricity theft was found to be committed are as under:

CRL. REV. PET. 830/2023 [arising out of CC No. 894/2022]

Address in ComplaintVerified Address in ApplicationHouse near T-Huts-37, Opposite FlatHouse No.: B-37 near T-Huts-37,No.: 37, D-5, Vishal Enclave, NewOpposite Flat No.: 37, D-5, VishalDelhi -110027Enclave, New Delhi-110027.

CRL. REV. PET. 833/2023 [arising out of CC No. 1085/2022]

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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 thepetitioner/complainant in all the complaints seeking to furnish betterparticulars/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. Theapplication was taken up for hearing by the Special Court on the same dayitself and was dismissed on the ground that the address upon which the raidwas conducted, intimation with respect to the raid was posted and the so-called theft bill was posted/served upon the accused is entirely differentfrom the address which is sought to be incorporated by virtue of amendment

application and the same entirely negates the case of the complainant withrespect to the alleged theft, as well as, goes to the root of the presentcomplaint.

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

“1. The offence of theft / abstraction of electricity, as alreadydiscussed earlier, will prima facie establish only w.r.t aparticular place and the identity of that place itself is in doubtnot by the court but by the complainant itself as the raid wasconducted at particular address and documents were alsoprepared and sent in this respect at particular address but nowby virtue of the amendment application the identity of the saidaddress stand changed.

2. The load sheet showing different appliances allegedly beingused by the accused do not tally with the videography containedin the CD tendered during the course of pre-summoningevidence.

3. There is no explanation w.r.t. non seizure of the illegal wiresby cutting the same from the BSES pole to at least outside thehouse of the accused.”

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

17.He submits that videography and photography was done by theinspection team at the time of conducting the raid, however, at the stage ofpre-summoning evidence the officials of the petitioner re-visited thepremises to find out the exact address of the premises and to particularize

the location. Accordingly, applications were filed seeking amendment alongwith the re-verification report.

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

19.He submits that evidence in the form of statements of CW1 and CW2was available on record which prima facie proves that the accused personshad indulged in offence of direct theft of electricity in terms of Section 135of the Electricity Act, 2003.

20.He submits that insofar as the observation of the Special Court thatthe inspection team could have seized the illegal wires from outside theinspected premises but the same was not done, is contrary to the law laiddown 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 nota fatal defect in prosecution under Section 135 of the Electricity Act, 2003.

21.As far as the finding of the Special Court to the effect that the loadsheet showing different appliances allegedly being used by the accused doesnot tally with the videography contained in the CD, the learned seniorcounsel submits that it is matter of trial and at the pre-summoning stagesuch detailed appreciation of evidence is not contemplated under Section200 CrPC.

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

23.I have heard the learned counsel for the petitioner, as well as, the

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learned APP for the State, and have perused the record.

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

25.This question need not detain this Court any longer, in as much as, theHon'ble Supreme Court in S.R. Sukumar Vs. S. Sunaad Raghuram, AIR2015 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 inthis regard, in the following terms:

“18. What is discernible from the U.P. Pollution Control Board’scase is that easily curable legal infirmity could be cured bymeans of formal application for amendment. If the amendmentsought to be made relates to simple infirmity which is curableby means of formal amendment and by allowing suchamendment, no prejudice could be caused to the other side,notwithstanding the fact that there is no enabling provisionin the Code for entertaining such amendment, the Court maypermit such an amendment to be made. On the contrary, if theamendment sought to be made in the complaint does not relateeither to curable infirmity or the same cannot be corrected bya formal amendment or if there is likelihood of prejudice tothe other side, then the Court shall not allow such amendmentin the complaint.

19. In the instant case, the amendment application was filed on24.05.2007 to carry out the amendment by adding paras 11(a)and 11 (b). Though, the proposed amendment was not formalamendment, but substantial one, the Magistrate allowed theamendmentapplicationmainlyonthegroundthatnocognizance was taken of the complaint before the disposal ofamendment application. Firstly, Magistrate was yet to apply the

judicial mind to the contents of the complaint and had nottaken cognizance of the matter. Secondly, since summons wasyet to be ordered to be issued to the accused, no prejudice wouldbe caused to the accused. Thirdly, the amendment did notchange the original nature of the complaint being one fordefamation. Fourthly, the publication of poem ‘Khalnayakaru’being in the nature of subsequent event created new cause ofaction in favour of the respondent which could have beenprosecuted by the respondent by filing separate complaint andtherefore to avoid multiplicity of proceedings, the trial courtallowed the amendment application. Considering these factorswhich weighed in the mind of the courts below, in our view, theHigh Court rightly declined to interfere with the order passedby the Magistrate allowing the amendment application and theimpugned order does not suffer from any serious infirmitywarranting interference in exercise of jurisdiction under Article136 of the Constitution of India.”

(emphasis supplied)

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

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

28.Even otherwise, the amendment does not go to the root of the matteras it is only formal in nature and does not change the original nature of thecomplaint which is complaint under Section 135 of the Electricity Act,2003. Further, the Code of Criminal Procedure like all procedural laws, is

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designed to further the ends of justice and not to frustrate them byintroduction of endless technicalities.[1]Therefore, absence of specificprovision in Code of Criminal Procedure, 1973 cannot be an impediment forallowing an amendment of the complaint at the pre-summoning stage to curea formal defect in the complaint.

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

30.Insofar as the dismissal of the complaint is concerned, it appears thatthe Special Court has embarked upon detailed appreciation of evidencewhich is not contemplated at the stage of summoning. The Special Courtwas only expected to examine the pre-summoning evidence which wasavailable in the form of the statement of CW1, CW2 and other exhibits tofind out whether based on prima facie impression of the said material, anelement of criminality is there for issuance of process, subject todetermination at the stage of trial.

31.The Special Court ought not to have delved deep into the comparativeexamination of load sheet and the videography available on the record in theform of CD.The detailed conciliation of appliances in the load sheet andthe videography is essentially matter of trial and consideration of factualcontroversy in that regard at the stage of summoning will not be judiciousapproach. The Special Court is not required to evaluate the merits of thematerial or evidence in support of the complaint, because the Special Courtmust not undertake an exercise to find out whether the material would leadto conviction or not.

1 AIR 1956 SC 116

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32.The question as to whether non-seizure of illegal wires etc., is fataldefect in prosecution under Section 135 of the Electricity Act, 2003 is alsono more res integra. This Court in Mukesh Rastogi (supra) dealing with asimilar question has observed that the Court has only to see whether thefthas been proved by cogent evidence or not and mere non-production of thewires cannot fail the prosecution’s case, if the theft of electricity is otherwiseproved. The relevant paragraph of the afore-noted judgment read as under:-

"5. From the evidence it is apparent that the wires, cut out and theentire material being used for stealing electricity was collected fromthe spot. However, it is true that the wires used by the appellant forconnecting LT Main directly upto the cut out were not produced inthe Court. The counsel for the appellant argued that this non-production of the case material is serious lacuna on the part of thecomplainant and the ·appeal should be allowed. I consider that thisargument must fail. The case against the appellant is of theft ofelectricity and the Court has to see whether this theft has beenproved by cogent evidence or not. Mere non-production of the wirescannot fail the prosecution, if the theft of electricity is proved bycogent evidence otherwise. It must be kept in mind that complaint isfiled by NDPL which is basically distribution company. Theofficials working in enforcement department are no trained in'investigation and since this is new job for them, it may take sometime for them to learn the technicalities of investigation. Merelybecause there is lapse on the part of the complainant company notto retain or not to produce the wires in the Court through which theelectricity was being stolen, cannot fail the case if it is sufficientlyproved by other evidences that electricity was being stolen byhooking wires directly to LT Main. In the present case; the evidenceof CW2 and CW3 in respect of theft of electricity has goneunchallenged. CW 2 & CW 3 both were the members of enforcementteam that had visited the spot. CW 2 & CW 3 had categorically statedthat accused was taking supply of the electricity directly from NDPLLT Main through one number single phase two core wire and theelectricity was being used for domestic as well commercial purposes.......

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8. It has to be kept in mind that the conclusion of theft by the TrialCourt cannot be made merely on the basis of an inspection report. Ifthe law had been that the inspection report in itself was conclusiveevidence of the theft of electricity and no further evidence wasrequired, it would have been possible for the counsel for theappellant to argue that since the inspection report was theconclusive evidence of theft, the inspection report must strictlycomply with the rules. Inspection of the premises is merely meanto detect the theft of electricity and to find the means by which theelectricity was being stolen. Inspection Report is merely piece ofevidence and inspection report is not considered as conclusiveproof of the theft of electricity. The theft of electricity has to beproved by the complainant in the Court by cogent evidencetherefore, the validity of the inspection report cannot be attached toomuch of importance. Similarly, non-production of the single corePVC wires through which electricity was being stolen is not aserious infirmity in this case since there is sufficient oral testimonysupported by photographs showing the theft of electricity. Theappellant has stated that the name of 'the photographer and copies ofphotographs ·were not supplied to him before hand. It is submitted bythe counsel for the complainant that the photographs were of thepremises of the appellant and there was apprehension to the life of thephotographer, therefore his name was not disclosed. There is force inthe submission. There was likelihood of the photographer being putto danger of life. Photographer was not an employee of thecomplainant company and it was an obligation of NDPL to keep thesafety of photographer in mind ........... "

33.The non-production of the wires etc. would warrant dismissal of thecomplaint only when the complainant fails to prove its case with othercogent evidence. To be noted, that material in the form of the statements ofCW1, CW2, the videography, the inspection report and other material isavailable on record which ought to have been examined by the Special Courtindependently to arrive at conclusion whether the material prima faciediscloses the offence alleged against the accused warranting issuance ofprocess. However, the manner in which the Special Court has non-suited the

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complainant without considering the complaint and the evidence in supportthereof, is not justified.

34.It is settled law that the Magistrate, at the stage of taking cognizanceand summoning, is required to apply his judicial mind only with view totaking cognizance of the offence, or in other words, to find out whether aprima facie case has been made out for summoning the accused persons. Thelearned Magistrate is not required to evaluate the merits of the material orevidence in support of the complaint, because the Magistrate must notundertake the exercise to find out whether the materials would lead to aconviction or not.[2]

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

36.Consequently, the matters are remanded back to the Special Court andthe Special Court is directed to proceed with the amended complaints inaccordance with law.

37.The petitions stand disposed of.

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

VIKAS MAHAJAN, J

DECEMBER 25, 2023

N.S.ASWAL

2 Sonu Gupta v. Deepak Gupta and Ors. 2015 (3) SCC 424