Section 169 of the Electricity Act, 2003 which defines the term public servants in pursuance to Section 21 of the Indian Penal Code includes the servants or the employees under Section 126 of the Electricity Act, 2003. As discussed above, the Board has authorized various officers including the Junior Engineers and linemen to detect the theft. Hence, they are covered under the definition of public servants in Section 169 of the Electricity Act, 2003. Therefore, the Court is of the view that the learned Judicial Magistrate First Class erred in issuing the process against the petitioners without sanction as required under Section 197 of the Criminal Procedure Code. This issue was not dealt with at all. The impugned order also does not reflect the application of mind. Hence, the petition deserves to be allowed. {Para 22}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 744 OF 2008
Syed Naeemuddin S/o Syed Khaja, Vs The State of Maharashtra.
CORAM : S.G. MEHARE, J.
PRONOUNCED ON : SEPTEMBER 12, 2024.
1. The petitioners/employees of the then MSEDCL had
impugned the order of the learned Judicial Magistrate First Class
issuing process against them for the offences punishable under
Sections 323 and 506 of the Indian Penal Code in Criminal Case
No.114 of 2008 dated 17.06.2008 and the order of the learned
Additional Sessions Judge, Biloli passed in Criminal Revision No.17 of
2008 dated 08.09.2008 dismissing the revision.
2. The learned counsel for the petitioners submits that before
the complaint was filed against the petitioners, an FIR was registered
against the complainant for the offences punishable under Sections
353 and 504 of the Indian Penal Code and Section 135 of the Indian
Electricity Act, 2003. However to counter that case, respondent no.2
had filed the false complaint against them. He submitted that the
petitioners being public servants, the order issuing the process against
them could not be passed unless the sanction is obtained as provided
under Section 197 of the Criminal Procedure Code. No Court can take
the cognizance against the public servants, who are the public
servants defined under Section 21 of the Indian Penal Code or any
other relevant provisions of law. To bolster his argument, he relied on
the case of Lalankumar Singh and Others Vs. State of Maharashtra,
2022 SCC Online SC 1383 and State of Haryana and Others Vs.
Bhajanlal and Others, 1992 Supp(1) SCC 335. He also submitted the
notification of the State of Maharashtra dated 04.06.2005 to bolster
his argument that the entire property of the Maharashtra State
Electricity Board with assets and liability has been vested with the
State Government.
3. The learned counsel for the respondent submits that the
petitioners were not the public servants at the relevant time. They
were the employees of a Board run by the Government. Therefore,
sanction under Section 197 of the Criminal Procedure Code was not
essential. The Court had directed an inquiry under Section 202 of the
Criminal Procedure Code. After receiving the report, the learned
Magistrate has applied his mind and satisfied that there was a case for
issuing process against the petitioner. The case laws relied upon by
the learned counsel for the petitioners do not support his contention.
Those are on different facts.
4. On hearing the respective counsels, the following
question arises for determination :
(i) Whether the petitioners were public servants ?
(ii) Was the order issuing process against the petitioners was bad in
law for want of sanction under Section 197 of the Criminal Procedure
Code ?
5. Section 197 of the Criminal Procedure Code provides that
no Court shall take cognizance of any offence, except with the
previous sanction of the concerned authority. The Magistrate proceed
to issue summons or warrant as the case may be under Section 204 of
the Criminal Procedure Code only on taking the cognizance.
6. At the time of admission of present writ petition, a
statement was made before the Court that the question whether the
petitioners are public servants is a subject matter for consideration
before the Apex Court in S.L.P. (Cri.) No.7366 of 2007 and connected
Petitions bearing S.L.P (Cri.) No.7338 of 2007. The question whether
they are entitled to seek protection under Section 197 of the Criminal
Procedure Code requires consideration. On these submissions, the
rule was made and ad-interim relief was granted and the record was
called.
7. In Criminal Appeal No.1979 of 2010 arising out of S.L.P.
(Cri.) No.7336 of 2007, no issue was before the Court about sanction
under Section 197 of the Criminal Procedure Code and the appellants
did not claim that they were the public servants.
8. Section 169 of the Electricity Act, 2003 provides that,
members, officers, etc., Appellate Tribunal, appropriate commission to
be public servants. The said Section reads thus :
“169. Members, officers, etc., of Appellate Tribunal,
Appropriate Commission to be public servants.– The
Chairperson, Members, officers and other employees of the
Appellate Tribunal and the Chairperson, Members,
Secretary, officers and other employees of the Appropriate
Commission and the assessing officer referred to in section
126 shall be deemed, when acting or purporting to act in
pursuance of any of the provisions of this Act to be public
servants within the meaning of section 21 of the Indian
Penal Code (45 of 1860). “
9. Apart from members, officers etc., of Appellate Tribunal,
the assessing officer referred to in Section 126 were deemed to be
public servant within the meaning of Section 21 of the Indian Penal
Code.
10. Sub-section (1) of Section 126 of the Electricity Act, 2003
provides that the assessing officer may inspect any place or premises
or after inspection of the equipments, gadgets, machines, devices
found connected or used, or after inspection of records maintained by
any person, the assessing officer comes to the conclusion that such
person is indulging in unauthorized use of electricity, the assessing
officer shall provisionally assess to the best of his judgement the
electricity charges payable by such person or by any other person
benefited by such use.
11. Section 151 of the said Act further provides for the
cognizance of the offence. It provides that, no court shall take
cognizance of an offence punishable under the said Act except upon a
complaint in writing made by Appropriate Government or
Appropriate Commission or any of their officer authorized by them or
a Chief Electrical Inspector or an Electrical Inspector or licensee or the
generating company, as the case may be, for this purpose. However,
by way of amendment, the powers were also conferred upon the
police to investigate the offence.
12. The State Government by various notification appointed
various officers of MSEDCL to detect the theft under Section 135 of
the Electricity Act. The Junior Engineer and the other employees
working on the field were also appointed for the purpose of Section
135. The general practice of assessing the theft of the electricity was,
soon after detecting the theft, the person inspecting the meter or
gadget provisionally assess the amount of theft. The appropriate
government or the MSEB Board has authorized the Junior Engineer
and linemen to find out the theft of the electricity. Since the persons
who were authorized to detect the theft of the electricity and to
provisionally assess the amount of theft, it can be accepted that such
persons are covered under Section 169 of the Electricity Act, 2003.
13. In the old Act of 1948, Section 81 was very specific that
all [members and officers and other employees] of the Board shall be
deemed, when acting or purporting to act in pursuance of any of the
provisions of this Act, to be public servants within the meaning of
section 21 of the Indian Penal Code (45 of 1860).
14. The Madras High Court in V. Srinivasan Vs. The Secretary
and others, Writ Petition No.7424 of 2013 and M.P. Nos.1 and 2 of
2013 had decided the issues raised therein on 25.03.2023. The
question before the Court was whether Section 81 of the 1948 Act
covering all servants and employees of the electricity board as public
servants under Section 21 of the Indian Penal Code, is identical to
Section 169 of the Electricity Act, 2003.
15. It was a case of Prevention of Corruption Act, 1988. It
has been held that Section 169 of the Electricity Act, 2003, is not in
pari materia with Section 81 of the Electricity (Supply) Act, 1948, in
so far as the persons covered by them are concerned. But both
provisions are identical to each other, in so far as the provision of law
on which both revolved, is concerned, namely Section 21 of the
Indian Penal Code.
16. It has been observed in para 19 that as indicated earlier,
the primary contention of the petitioner is that while Section 81 of the
1948 Act, made all employees of the Board as public servants, within
the meaning of Section 21 of the Indian Penal Code, Section 169 of
the Electricity Act, 2003 named only a few Officers as public servants,
within the meaning of Section 21 of the Indian Penal Code. To this
extent, there can be no quarrel with the contention of the learned
counsel for the petitioner, as Section 169 of the 2003 Act is restrictive
than Section 81 of the 1948 Act.
17. In para 20, it has been observed that ‘But that is not the
end of the issue here. Both the 1948 Act and the 2003 Act confined
their applications only to the definition of the expression "public
servant" as found in Section 21 of the Indian Penal Code.’
18. Lastly in para 26, it has been observed that ‘therefore, the
reference in Section 169 of the Electricity Act, 2003, making some
Officers as public servants, within the meaning of Section 21 of the
Indian Penal Code, has to be construed as a reference confined only to
offences other than corruption. In so far as the offences of corruption
are concerned, the question whether the employees of the
Corporations carved out of the Electricity Board are public servants or
not, has to be tested only with reference to the definition in Section
2(c) of the Prevention of Corruption Act, 1988 and not with reference
to Section 169 of the Electricity Act, 2003 read with Section 21 of the
Indian Penal Code.’
19. In para 27, it has been further observed that ‘the fact that
Section 169 of the Electricity Act, 2003, restricted the application of
the definition of the expression "public servant" found in Section 21 of
the Indian Penal Code, only to a few Officers, is an indication of only
two things. They are (i) that in so far as offences other than
corruption, punishable even today under the Indian Penal Code are
concerned, only a few Officers named in Section 169 are public
servants; and (ii) that in so far as offences relating to corruption are
concerned, the Electricity Act, 2003 did not deem fit to restrict the
application of the Prevention of Corruption Act only to a few Officers.’
20. In para 28, it has been observed that ‘in other words, in
respect of offences other than corruption, an employee of the
Electricity Corporation, would not be a public servant unless he is
covered by Section 169 of the Electricity Act, 2003.’
21. Section 21 of the Indian Penal Code is comprehensive
which includes various servants as public servants. In Clause 12, the
servants of the local authority, a corporation established by or under a
Central, Provincial or State Act or a Government company as defined
in section 617 of the Companies Act, 1956 (1 of 1956) were also
covered under the definition of the public servants. The MSEDCL is
the government established Board.
22. Section 169 of the Electricity Act, 2003 which defines the
term public servants in pursuance to Section 21 of the Indian Penal
Code includes the servants or the employees under Section 126 of the Electricity Act, 2003. As discussed above, the Board has authorized various officers including the Junior Engineers and linemen to detect the theft. Hence, they are covered under the definition of public servants in Section 169 of the Electricity Act, 2003. Therefore, the Court is of the view that the learned Judicial Magistrate First Class erred in issuing the process against the petitioners without sanction as required under Section 197 of the Criminal Procedure Code. This issue was not dealt with at all. The impugned order also does not reflect the application of mind. Hence, the petition deserves to be allowed. Hence, the following order :
ORDER
A) The writ petition is allowed.
B) The impugned orders of the learned Judicial Magistrate First
Class, Biloli passed in Criminal Case No.114 of 2008 dated
17.06.2008 and learned Additional Sessions Judge, Biloli
passed in Criminal Revision No.17 of 2008 dated 08.09.2008,
stand quashed and set aside.
C) Rule is made absolute in the above terms.
(S.G. MEHARE, J.)
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