Court No. - 49
Case :- APPLICATION U/S 482 No. - 28847 of 2018 Applicant :- Sanaul Haq Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Syed Wajid Ali,Syed Mohammed Jafer Husain Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard Mr. Syed Wajid Ali, learned counsel for the applicant, Mr. Mehboob Ahmad learned counsel for the informant and learned A.G.A. for the State.
The present application has been filed to quash the charge sheet dated 16.12.2017 and cognizance order dated 8.6.2018 as well as entire proceedings of Special Trial No. 137 of 2018 (State Vs. Sanaul Haq), arising out of Case Crime No. 1079 of 2017, under Section 135 Indian Electricity (Amendment), Act 2003, Police Station Kotwali, District Fatehpur, pending in the court of Special Judge (E.C. Act), Fatehpur.
The solitary argument advanced by learned counsel for the applicant appears to be that he has no concern with the business being conducted in the name of Skynet Digital Services Pvt. Ltd. inasmuch as he is neither the constituent of that business nor he is an employee of that business or its constituent nor he is an agent of such business or person. A document in the shape of registration granted by the District Entertainment Tax, Officer in favour of one Niyaz Ahmad son of Ahmad Khalik has been appended disclosing that person to be a proprietor of the business Skynet Digital Services Pvt. Ltd. That document issued by a District Entertainment Tax Officer does appear to have prima facie evidentiary value. Then, referring to the rent deed executed by one Saeed Alam in favour of said Niyaz Ahmad, it has been further submitted that the premises where the electricity theft is alleged to have been taken place had been taken on rent by the said Niyaz Ahmad.
In such circumstance, it has been stated that the applicant does not have any connection with the premises or the business establishment where theft is alleged to have taken place. An over simplified conclusion had been drawn by the investigating agency, in that regard, without conducting a full and proper investigation, merely on the statement of junior engineer and the linesman of the electricity distribution company.
Mr. Mehboob Ahmad, learned counsel for the opposite party no.2 on the other hand submits that even according to the document annexed as the rent deed the applicant is a signatory thereto and therefore he is not a stranger and he was also involved in the offence of theft at those premises.
Having considered the argument so advanced by learned counsel for the parties, without drawing any final or tentative conclusion as to complicity of the applicant in the alleged theft of electricity, it appears, in a case of electricity theft, it was incumbent for the investigating officer to have carried out an inquiry of fact to determine the real person who was running and operating the business and the person who was actual owner or occupier of the premises where the electricity theft had taken place and further the person who may have actually been engaged to set up the device to facilitate the theft of electricity. Such aspects do not appear to have been examined and at this stage cognizance has been taken only against the applicant to the exclusion of all other persons which in any case appears to be premature and incomplete. Merely because the applicant may have been a witness to the rent deed of the premises where theft had taken place may not be relevant to establish his complicity in such a crime. The ownership/constitution of the business, the managerial or other control over that business as also the involvement, if any of the owner and/or the occupier of that business and the arrangement (with respect to consumption of electricity), between the owner/occupier of the premises and the business entity or its manager/agent/employee as the case may be, were, amongst others the relevant aspect to be examined and ascertained before the prosecution may have been launched solely against the applicant, only because of some statement or allegation that may have arisen against him during investigation.
Consequently, the order dated 8.6.2018 is hereby set aside. It is provided that the investigating agency may carry out a further and proper investigation, amongst others with respect to the aforesaid aspects noted above and submit a supplementary police report within a period of two months from today.
It is further made clear, upon submission of supplementary report, the learned Magistrate shall pass a fresh order, strictly upon his independent application of mind, and take cognizance against such person against whom material may be found to be existing on such report and the original report (i.e. already on record), as to his actual complicity in the offence of theft of electricity and solely on the basis of conclusion/s presented by the investigating officer. Till then, no coercive measure be adopted against the applicant.
The application is allowed.
Order Date :- 21.8.2018 Mini