Judgment:
J. Banerjee, J.
1. The petitioner has filed the present application under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of the prosecution under Section 380 of the Indian Penal Code being complain case No. 319/93 pending in the Court of learned Chief Judicial Magistrate, 24-Parganas (S), Alipore.
2. On 29.3.93, the O.P. No. 2 as the complainant filed the aforesaid case before the Chief Judicial Magistrate, Alipore under Section 380 of the IPC, making 13 persons including the petitioners as the accused. The learned CJM took cognisance and after examining the complainant and his witness he issued process under Section 380 IPC against the petitioners who are shown as accused Nos. 11, 12 and 13 in the petition of complaint.
3. In the aforesaid petition of complaint Sri S. Agarwala one of the Directors of a company, namely, M/s. Bengal Molecular Industries (P) Ltd. has alleged that the company has its factory at 233/A, Rai Bahadur Road. Calcutta-700053. Prior to 15.10.1982, the electric supply at premises No. 233/A, Rai Bahadur Road, was in the name of M/s. Mahajati Shilpa Sangha and on or about 15.10.82 the said M/s. Mahajati Shilpa Sangha gave its consent for transfer of electric supply in favour of complainant's company and accordingly, the complainant made an application to CESC Ltd. for transfer of the electric supply in favour of complainant's company. It is alleged that the said company of the complainant has been carrying on its manufacturing activities at the aforesaid factory since 1982 and 35 KW electricity is sanctioned by CESC Ltd. at the aforesaid premises. It is further alleged that 15.1.93 at about 12.30 p.m., the accused/petitioners visited the factory of the complainant company and requested the Manager of the factory to switch off the mains of supply, so that accused/petitioners could test the meter. It is further alleged that after switching off the main, the meter was tested and the same was fount in perfect working condition by the said accused/petitioners. Inspite of that they, all of a sudden, removed the meter (No. 1345420) from the factory of the complainant and snapped the 440 Volts supply at premises No. 233/A, Rai Bahadur Road, Calcutta-53 without any notice or without showing any cause or justification. In this background, it is alleged that the accused/petitioners committed theft of the meter installed at the aforesaid premises without granting any receipt.
4. The petitioners have filed the instant application with the prayer for quashing the prosecution launched under Section 380 of the IPC contending, inter alia, that the prosecution case is inherently improbable, patently absurd and oppose to any sense, so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the petitioners; for that, from the facts and circumstances of the cas, it will clearly appear that the petitioners disconnected the supply line and removed meter of the factory premises in due discharge of their official duties and there is absence of essential ingredient of the offence punishable under Section 380 of the IPC.
5. Mr. Prodip Ghosh, learned senior counsel has submitted that the petitioners have invoked the inherent powers of this Court under Section 482 of the Cr.PC for quashing the proceeding pending in the Court below on the ground that the same is an abuse of the process of the Court and to secure the ends of justice it should be quashed. He has drawn my attention to the decision of the Apex Court in State of Haryana v. Bhajan Lal, : 1992CriLJ527 , wherein the Apex Court held that the proceedings in a criminal case can be quashed under Section 482 Cr.PC, (1) if the allegations in the complaint taken at their face value do not constitute the offence alleged, (b) if the allegations are patently absurd and inherently improbable, on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, or (c) if the proceeding is manifestly attended with malafide and/or is maliciously instituted with an ulterior motive, and also on some other grounds. It is the contention of the learned counsel that the allegations in the petition of complaint taken at their face value, do not constitute the offence of 'theft' as defined in Section 378 IPC. Here, it has been pointed out that admittedly CESC Ltd. is the owner of the meter in question. It is true that the complainant was in possession of the meter. But simply by taking the meter out of the possession of the complainant, the officers of CESC did not commit the offence of theft. It is an admitted position that the meter was removed in course of inspection and testing which was done after informing the Manager of the consumer in terms of Section 26(4) of the Indian Electricity Act, 1910, (hereinafter mentioned as the Act). Section 26(4) of the Act requires that any duly authorised person of the licensee (CESC) shall at any reasonable time and on informing the consumer of his intention, have access to and 'be at liberty to inspect and test' the meter. The section further provides that for the aforesaid purpose, if the authorised person of the licensee thinks fit he has the power to take off and remove any meter and it is not necessary for him to give any further notice to the consumer. It has been further pointed out that in para-6 at p. 36 of the complaint the O.P. No. 2 has admitted that the petitioners had informed the Manager of he consumer's factory of their intention to enter and to inspect and test the meter of the consumer. Therefore, the petitioners acted absolutely in accordance with law in due discharge of their official duty and are squarely covered by Section 79 IPC and no case of theft can at all arise against them. In this respect, the learned counsel has further elaborated in his argument that one of the important ingredients of the offence of theft is that the taking must be done 'dishonestly'. The word 'dishonestly' has a special meaning as given in Section 24 of the IPC. It must lead to 'wrongful gain' or 'wrongful loss'. The word 'wrongful gain' and 'wrongful loss' have been defined in Section 23 of IPC. CESC being he owner of the meter, the taking away of the meter could not have occasioned any 'wrongful gain' or 'wrongful loss' to the complainant because of the deprivation of the property. In this connection, he has referred illustration (i) of Section 378 IPC. At the same time, the learned counsel has pointed out that on some occasions even an owner may commit the offence of theft in respect of his own property, which is in the possession of another person. Illustration ()) of Section 378 IPC clearly indicates how this can happen. But in the instant case, by the taking away of the meter, there cannot be any offence of theft as defined in Section 378 IPC. The learned counsel has further submitted that the taking away must be without the consent of the person in possession, and explanation 5 of Section 378 IPC provides that the 'consent' may be express or 'implied'. The meter was removed not stealthily, or behind the back of the complainant, but after duly informing the Manager of the factory and in the presence of the Manager. There is no allegation that the Manager had objected to such taking or sought to resist the removal of the meter. So having regard to the provisions of Section 26(4) of the Act read with the second proviso (b) and (d) of para VI(1) of the Schedule of the Act, CESC being authorised in law to remove the meter and to discontinue the supply under certain circumstances, the removal must be deemed to be with the implied consent of the complainant.
6. Mr. Kasem Ali, learned counsel for the O.P. No. 1/States has supported the contention made on behalf of the petitioners and has submitted that in the facts and circumstances of the case there cannot be any offence punishable under Section 380 of Indian Penal Code.
7. Mr. S. Agarwala, O.P. No. 2 of the proceeding who has appeared personally has pointed out that against order No. 2 dated 3rd April, 1993 passed by the learned Chief Judicial Magistrate, Alipore by which process against accused/petitioners under Section 380 IPC was issued one revisional application under Section 482 of the Cr.PC was filed, which was dismissed by this Court by an order dated 14th September, 2000 and once the said revisional application was dismissed by this Court, the order of issuance process dated 3rd April, 1993 passed by the learned CJM at Alipore became final as the same was merged with the order dated 14th September, 2000 passed by this Court. It is contended that no doubt at the time of dismissal of the revisional application under Section 482 Cr.PC this Court gave liberty to the applicant of C.R.R. No. 899/93 to move afresh challenging the order impugned but the said order passed by this Court should be read with a rider that the accused persons file a further petition for revision but such petition is to be filed in accordance with law. It is further contended that such revisional application is to be filed as prescribed under Article 131 of the Limitation Act, 1963. He has further pointed out that the petitioners/ accused persons would not get protection under Section 14 of the Limitation Act, 1963 as the same is only available if a suit or proceeding is filed in a wrong forum. Since the instant revisional application has been filed after more than 7'/2 years from the date of the order dated 3rd April, 1993 same is barred by limitation as per the aforesaid article. This is more so as there is no application for condoning the delay under Section 5 of the Limitation Act. Mr. Agarwala has further contended that quashing of a criminal proceeding at primary stage should be done in the rarest of rare case and there, the High Court must look into the relevant law, allegation made in the chargesheet and then consider whether any offence has been made out or not. In this respect, he has further argued that removal of the electric meter, in the facts and circumstances of the case, prima facts, has made out an offence punishable under Section 380 IPC and in advancing his argument, he has pointed out that the dispute, if any, was not referred by the CESC Ltd. to the Electrical Inspector under Section 26(6) of the Indian Electricity Act, 1910 and in this respect he has relied on the decision of the Apex Court, in the case of Calcutta Electricity Supply Corporation Ltd. v. N.M. Banka and Ors., 1996 2 SCC 58 and has drawn the attention of the Court to the observation made in para 4 of that decision wherein the Apex Court has observed that the supplier shall not be at liberty to take off or remove any meter until the dispute has been determined by the Electrical Engineer.
8. The only question for my consideration here is whether in the facts and circumstances of the case, the prosecution launched under section 380 of the IPC through complaint case No. 319/93 should be quashed or not?
9. It is well settled that the High Court should not ordinarily quash a proceeding and this should be done in the rarest of the rare case. Long before the celebrated decision in Bhajan Lal's case which has been referred by the learned counsel for the petitioners, the Apex Court in the case of R.P. Kapoor v. State of Punjab, AIR 60 SC 866 mentioned some categories of cases where inherent power should be exercised to quash proceedings:-
(I) Where it manifestly appears that there is legal bar against the institution or continuance of the case for example want of sanction.
(II) Where the allegations in the FIR or complaint taken at its face value, accepted in their entirety do not constitute the offence alleged.
In the same case at p. 393, the Hon'ble Court made the following observation :- 'Cases may also arise where the allegations in the FIR or the complaint even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, in such cases no question appreciating evidence arises, it is a matter merely of looking at the complaint or the FIR to decide whether the offence alleged is disclosed or not. In such case it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused person.'
10. In this case, as it has been noted the main contention of the learned counsel for the petitioners is that in the allegations made in the petition of complaint, even if taken at its face value accepted in their entirety do not constitute the offence alleged, namely, the commission of theft of a meter punishable under Section 380 IPC. In reply Mr. Agarwala pointed out that since the petitioners removed the meter in violation of the Act, it should be presumed till the contrary is proved that the accused/petitioners dishonestly took away the meter in question out of possession of the complainant. But before I proceed to consider, the question whether the petition of complaint disclosed any offence punishable under Section 380 IPC or not, I should consider the question whether the present petition is barred by limitation as contended by Mr. Agarwala.
11. Here the admitted position is that for the purpose of quashing the, complaint case in question one revisional application under Section 482 Cr.PC was filed before this Court through C.R.R. No. 899/93. Further admitted position here is that this Court by an order dated 14th September, 2000 dismissed the application with liberty to file the same afresh after removing some defects seen. The contention of Mr. Agarwala is since the present application is not accompanied with an application under Section 5 of the Limitation Act, the same is hopelessly time barred and for that reason alone the present application should be dismissed. He has submitted that since the present proceeding arises out of a revisional application, the same should have been filed within 90 days from the date of the order of taking cognisance on the complaint under Article 131 of the Limitation Act. Mr. Ghosh on the other hand has contended that Article 131 of the Limitation Act has got no application, in the instant case as it is not a revisional application under Section 397 Cr.PC against any particular order. But it is an application for quashing the proceeding under Section 482 invoking the inherent power of the High Court and it is directed against the continuance of the proceeding.
12. Having heard the learned counsel for the petitioners and O.P. No. 2 in person I find much force behind the argument of the learned counsel. The inherent power of the High Court preserved under Section 482 of the Cr.PC mainly to prevent abuse of the process of the Court and there cannot be any total bar under any provision on the exercise of such inherent power where abuse of the process of the Court or other extraordinary situation excites the Court's jurisdiction, the limitation is self-restraint, nothing more. In the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Mohan Singh and Ors., reported in : 1975CriLJ812 , the Apex Court was posted with the question whether after rejection of a revisional application challenging a particular order of the Court, the High Court could entertain an application under Section 482 Cr.PC challenging the same order and whether it amounted to review of the earlier order passed in connection with the revisional proceeding. The Hon'ble Court in that case clearly held that Section 561A (now old Code) preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be Invoked. The High Court was, in the circumstances, of that reported case, entitled to entertain the subsequent application of respondents and consider whether on the facts and circumstances, the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice. The fact that the revisional power of the High Court under Section 397 is different from its inherent power under Section 482 Cr.PC has been clearly indicated in the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors., : 1983CriLJ159 , wherein para 5, the Supreme Court in dealing with the question made the following relevant observations :-
'After coming into force of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'present Code'), there was a serious divergence of judicial opinion on the question as to whether where a power is exercised under Section 397 of the present Code, the High Court could exercise those very powers under Section 482 of the present Code. It is true that Section 397(2) clearly bars the jurisdiction of the Court in respect of interlocutory orders passed in appeal, enquiry or other proceedings. The matter is, however, no longer res integra as the entire controversy has been set at rest by a decision of this Court in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 , where this Court pointed out that Section 482 of the present Code had a different parameter and was a provision independent of Section 397(2). This Court further held that while Section 397(2) applied to the exercise of revisional powers of the High Court Section 482 regulated the inherent powers of the Court to pass orders necessary in order to prevent the abuse of the process of the Court.'
13. The Apex Court in that case, while examining the scope of Section 482 of the present Code, made the following observation at para 6 of the judgment:-
'It may be noticed that Section 482 of the present Code is the ad verbatim copy of Section 561A of the old Code, This provision confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the Court has been seriously abused. It is not merely a revisional power meant to be exercised against the orders passed by subordinate Courts. ............... Thus, the scope, ambit and range of Section 561A (which is now Section 482) is quite different from the powers conferred by the present Code under the provisions of Section 397.'
14. From above it is clear that powers under Section 482 is an extraordinary one and it is quite different from the revisional powers conferred under Section 397 of the Code. I am one with the learned counsel for the petitioners in coming to a conclusion that in a revisional application under Section 397 Cr.PC which is against a particular order, Article 131 of the Limitation Act, 1963 will be applicable. But in the instant case, where the application has been filed for quashing the proceeding under Section 482, when inherent power of the High Court is invoked, the same is directed against the continuance of the proceeding and therefore it cannot be said that such application is directed against any particular order. It is directed against the continuance of the proceeding which according to the allegation is nothing, but an abuse of the process of the Court. Therefore, I do not find any reason to accept the argument advanced by the O.P. No. 2 for coming to the conclusion that the present proceeding is barred by limitation.
15. Now, the question centres round whether the present case is a fit case where proceedings should be quashed. I have already pointed out that the main contention of the learned counsel for the petitioners is that the instant proceeding is an abuse of the process of the Court as the prosecution case here is inherently improbable, patently absurd and oppose to any sense, so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the petitioners and also the allegations made in the complaint taken at their face value do not constitutes the offence alleged. In this connection, the learned counsel for the petitioners has drawn my attention to allegations made in paragraph-6 of the petition of complaint (Annexure P-5 at page 36 of P.B.), which runs as follows:-
'That on 15.1.93 at about 12.30 p.m., the opposite parties Nos. 10 to 12 visited the factory of the complainant's company and requested the Manager of the factory to switch off the mains of supply, so that opposite parties Nos. 10 to 12 can test the meters and after switching off the main, the meter was tested and was found in perfect working condition by said opposite parties Nos. 10 to 12 and finding no other fault, the said opposite parties Nos. 10 to 12 stated to the Manager of the complainant's company that complainant is having litigation with CESC and said opposite parties 10 to 12 stated that they have been directed by the opposite parties Nos. 1 to 9 to teach lesson to the complainant and the said opposite parties Nos. 10 to 12 stated that they have been directed to remove the meter from the factory of the complainant's company on false pretext and the said opposite parties Nos. 10 to 12 all of a sudden removed the meter No. 1345420 from he factory of complainant's company and snapped the 440 volts supply at premises No. 233/A, Rai Bahadur Road, Calcutta-700 053 without any notice or without showing any cause or justification.'
16. The further contention of the learned counsel for the petitioners is that there is total absence of a vital ingredient of the offence of theft as defined under Section 378 as in the facts and circumstances of the case it cannot be said that the accused/petitioners took away the meter in question dishonestly as defined in Section 24 IPC. Further contention is that the action taken by the accused/petitioners who are admittedly officials of the CESC at the relevant point of time, will come under the general exceptions as contemplated under Section 79 of the IPC as the alleged act has been done by those persons justified by law or by mistake of fact believing themselves justified by law.
17. Mr. S. Aganvala, the O.P. No. 2 on the other hand has submitted that there is a strong prima facie case for trial of the matter as the meter in question, before the commission of the offence complained of, was in possession of O.P. No. 2 who was paying rent for the meter to CESC Ltd. and the accused petitioners without any notice to the possessor removed the meter in question.
18. For the purpose of advancing his argument that the accused/ petitioners were justified by law in their action alleged, namely, removal of the electric meter, the learned counsel for the petitioners has drawn my attention to Sub-section 4 of Section 26 of the Act which runs as follows:-
'The licensee or any person duly authorised by the licensee shall, at any reasonable time and on informing the consumer of his intention, have access to and be at liberty to inspect and test and for that purpose, if he thinks fit, take off and remove, any meter referred to in Sub-section (1), and except where the meter is so hired as aforesaid, all reasonable expenses of, and incidental to, such inspecting, testing, taking off and removing shall, if the meter is found to be otherwise than correct, be recovered from the consumer; and, where any difference or dispute arises as to the amount of such reasonable expenses, the matter shall be referred to an (Electrical Inspector), and the decision of such Inspector shall be final:
Provided that the licensee shall not be at liberty to take off or remove any such meter if any difference or dispute of the nature described in Sub-section (6) has arisen until the matter has been determined as therein provided.'
19. It is submitted that the petition of complaint itself indicates that the consumer, namely, O.P. No. 2 was informed about the intention of the licensee, CESC in order to get access to and be at liberty to inspect and test the meter and in course of such the accused/petitioners being officials of the licensee company thought it fit to take off and remove the meter. It is further pointed out that as per proviso to Clause 4, the licensee is debarred from taking off or removing the meter, if any, difference or dispute of the nature described in Sub-section (6) has arisen. In that event, the meter cannot be removed until the matter has been determined as provided under Sub-section (6). Sub-section (6) of Section 26 of the Act provides that where any difference or dispute arises as to whether any meter referred to in Sub-section (1) is or is not correct, then such matter shall be decided, upon the application of either party, by an Electrical Inspector. It is the contention of the learned counsel for the petitioners there is nothing to show that any difference or dispute arose as contemplated under Sub-section (6) of Section 26 of the Act. Therefore, there was no question of referring the matter to the Electrical Inspector as contemplated in that event. Mr. Agarwala, O.P. No. 2 on the other hand has contended that there was indeed a dispute regarding the correctness of the meter and so, the petitioners could not remove the meter and instead of that such dispute should have been referred to the Electrical Inspector as provided under Sub-sections (6). Mr. Agarwala in course of his argument has referred to some cases like : AIR1997All297 , : AIR1996Cal449 , AIR 1991 Karnataka 349 and also a decision of the Apex Court reported in : [1988]1SCR890 . These decisions relate to dispute between the parties whether meter in question is correct one or faulty. It is well settled that in that event under Sub-section (6) of Section 26 of the Act the matter must be referred to Electrical Inspector and pending dispute Electricity Board cannot issue supplementary bill or threaten disconnection of supply electricity etc. That is not the point here. Here the question is whether for the removal of a electric meter which admittedly was in possession of the O.P. No. 2 any offence under Section 380 IPC has been committed or not? At the very outset, I find that there is nothing to indicate that there was any dispute between the parties as contemplated under Section 26 Sub-section (6) that is to say whether the meter in question was recording the consumption correctly or not. Here the whole allegation on the basis of which the officials of the licensee company removed the meter is that there was pilferage of power committed by the consumer. I am one with the contention of the learned counsel for the petitioners that the allegations made in the petition of complaint clearly indicate that the consumer got the necessary information regarding the inspection and test of the meter by the petitioners. That being so, it is evident that the petitioners removed the meter from the possession of the consumer but as required under Section 378 without any dishonest intention on their part. It follows that the petition of complaint taken at its face value fails to disclose the offence of theft as defined in Section 378 IPC. In that background, I find that it is a fit case where the prosecution under Section 380 of IPC launched against the petitioners should be quashed. In coming to such a conclusion I must also mentioned that like learned senior counsel for the petitioners Mr. Agarwala also has wanted to place his reliance in some reported decisions of the Apex Court mainly to point out that this is not a fit case where the prosecution should be quashed. In this respect, he has referred the case of State of J&K; v. Romesh Chander and Ors. reported in : 1997CriLJ2976 , wherein the Apex Court has laid down that where charge-sheet has been submitted, the Court has to look into the relevant law and allegations made in the charge-sheet and then consider whether any offence has been committed to frame charges for trial before discharging the accused. In the case of P. Vijayapal Reddy and Ors., v. The State (Government of India), reported in : 1978CriLJ1702 , where the Hon'ble Court supported the order of the High Court through which the said Court refused to exercise its inherent powers under Section 482 to quash the criminal proceedings against the accused under Rule 21(1)(ii) read with Rule 27 of the Mineral Conservation and Development Rules 1958 as some evidence regarding the user of the minerals in question was necessary to determine the question as to whether the said minerals were used for certain purpose, in the case of Municipal Corporation of Delhi v. Purshotam Doss Jhunjunwala and Ors., reported in : 1983CriLJ172 , wherein the Hon'ble Court observed that in that case the complainant made a clear averment regarding the active role played by the accused-respondents and the extent of their liability and held that a prima facie case for summoning the accused had been made out and as such it was not a fit case in which the High Court should have exercised its inherent power, and also in the case of Pratibha Rani v. Suraj Kumar and Anr., reported in : 1985CriLJ817 wherein the Apex Court observed that the Courts prima facie satisfaction must be based only on the allegations made in the complaint taking them to be correct and if clear allegations constitute the offence alleged are made, the Court should be reluctant to interfere. On going through these decision and some other decision also referred by Mr. Agarwala I find that these decision will not come to the help of the O.P. here in view of my finding that the petition of complaint in the instant case failed to disclose the offence alleged, namely, one punishable under Section 380 IPC.
20. Considering all these facts and circumstances I find that the application should be allowed. Accordingly, the application being CRR No. 2532/2000 is allowed. The prosecution launched under Section 380 of IPC being complaint case No. 319/93 pending in the Court of Chief Judicial Magistrate, 24-Parganas (S), Alipore is hereby quashed. I make no order as to cost.
21. Later
22. The prayer for stay of the operation of the order is hereby rejected.
23. Let an urgent xerox certified copy of this judgment be given to the parties within a reasonable time, if applied for.