The Allahabad High Court has upheld the summons issued by the Special Court Additional Sessions Judge Ghaziabad on charges of electricity theft and said it was not out of jurisdiction.
A single-judge bench of Justice Rajeev Misra passed this order while hearing an application under Section 482 CrPC filed by Gulfam.
The application under Section 482 CrPC has been filed challenging Charge-Sheet dated February 02, 2021 submitted in Case under sections 135-1(A) Electricity Act, Police Station Anti Power Theft Ghaziabad, District Ghaziabad as well as entire proceedings of S.S.T No152 of 2021 (State Vs. Gulfam) under section 135-1(A) Electricity Act, Police Station Anti Power Theft Ghaziabad, District Ghaziabad arising out of aforementioned case crime number and now pending in the court of Special Judge (E.C. Act)/Additional District and Sessions Judge, Ghaziabad.
The Court noted, “Record shows that in respect of an incident, which is alleged to have occurred on December 26, 2020, a delayed FIR dated December 28, 2020 was lodged by first informant/opposite party-2- Umesh Kumar Gupta (Junior Engineer) and was registered as Case under sections 135- 1(A) Electricity Act, Police Station- Anti Power Theft Ghaziabad, District- Ghaziabad. In the FIR, applicant- Gulfam has been nominated as a solitary accused.”
“According to the prosecution story as unfolding in the FIR, it is alleged that on December 26, 2020, the first informant along with others conducted a check of the premises of the petitioner and found that electricity theft was being committed.”
“During the course of investigation, the Investigating Officer examined various witnesses and also collected certain documents. On the basis of above, complicity of the applicant was found to be established in the crime in question by the Investigating Officer. Accordingly, the Investigating Officer submitted a Charge-Sheet dated February 02, 2021, whereby the applicant has been charge-sheeted under section 135-1(A) Electricity Act.”
“Upon submission of aforesaid charge-sheet, cognizance was taken upon the same by court concerned i.e Special Judge (E.C. Act) / Additional District and Sessions Judge, Ghaziabad vide Cognizance Taking Order dated February 5, 2020.”
“As a result of above, S.S.T No152 of 2021 (State Vs. Gulfam) under section 135-1(A) Electricity Act, Police Station- Anti Power Theft Ghaziabad, District- Ghaziabad arising out of aforementioned case crime number. Subsequently, a separate order dated February 05, 2021 passed on the order-sheet Special Judge (E.C. Act)/Additional District and Sessions Judge, Ghaziabad took cognizance and simultaneously summoned the applicant in the aforementioned Special Sessions Trial.”
“Feeling aggrieved by the charge-sheet dated February 02, 2021 and entire proceedings of consequential S.S.T No152 of 2021 (State Vs. Gulfam) under section 135-1(A) Electricity Act, Police Station- Anti Power Theft Ghaziabad, District- Ghaziabad, now pending in the court of Special Judge (E.C. Act) / Additional District and Sessions Judge, Ghaziabad, applicant has now approached the Court by means of the application under section 482 CrPC.”
Indra Deo Mishra, the counsel for the applicant, contended that the applicant was innocent. He had been falsely implicated in the aforementioned case crime number. Allegations made in FIR are false and concocted. No theft of electricity has been committed by the applicant. Investigating Officer has not conducted a free and fair investigation. As such, investigation is not impartial. Investigating Officer has acted as an agent of prosecution. Resultantly, the charge-sheet is tainted. Cognizance Taking Order/Summoning Order passed by court below is cryptic as the same is devoid of reasons.
It is also submitted that by virtue of section 193 CrPC, the Sessions Judge has no jurisdiction to take cognizance directly. Sessions Judge can take cognizance only after a case has been committed to the Court of Sessions. Therefore, Cognizance Taking Order/ Summoning Order passed by court below are not only irregular but illegal. As such, entire proceedings of the above-mentioned Special Sessions Trial are liable to be quashed by the Court.
Per contra, the AGA and Pranjal Mehrotra, the counsel representing opposite party 2, have jointly opposed the application.
AGA contends that after registration of FIR dated December 28, 2020, Investigating Officer proceeded with statutory investigation of the same in terms of Chapter XII CrPC. During the course of investigation, the Investigating Officer examined the first informant and other witnesses under section 161 CrPC. On the basis of above, as well as other material collected by the Investigation Officer during the course of investigation which is substantially adverse to applicants, he opined to submit a charge-sheet.
Accordingly, a charge-sheet dated February 02, 2021 was submitted, whereby and whereunder applicant has been charge-sheeted under section- 135-1(A) Electricity Act. In the charge-sheet so submitted one prosecution witness has been nominated. As such, it cannot be said at this stage that prosecution of the applicant is false or there is no material to support the prosecution case.
On the aforesaid premise, AGA contends that present application is liable to be dismissed.
“Having heard counsel for applicant, AGA for State, Pranjal Mehrotra, counsel for opposite party-2 and upon perusal of record, the Court does not find any merit in the application. The submissions urged by AGA could not be dislodged by counsel for the applicant. Apart from above, by virtue of section 154 Electricity Act read with sections 193 and 194 CrPC, it is explicitly clear that Special Judge (E.C. Act)/ Additional District and Sessions Judge, Ghaziabad had jurisdiction in the matter to take cognizance. As such, the Cognizance Taking Order/Summoning Order dated February 05, 2021 passed by Special Judge (E.C. Act)/Additional District and Sessions Judge, Ghaziabad cannot be said to be illegal or without jurisdiction. In view of above, the application fails and is liable to be dismissed,” the Court observed while dismissing the application.