Agra Electric Supply Company v. State Of U.P.

V. Bhargava, J.:— These fifteen applications were presented before a learned single Judge of this Court invoking its powers under Section 561-A of the Cr PC. The powers were sought to be invoked in respect of fifteen different cases which are pending in the Courts of Magistrates in this State in various districts. In all these cases amongst the accused is the local electric supply company also. The designation of the electric supply company varies from place to place. As an example, in Misc case No. 2747 of 1958 the supply company which is accused No. 1 is the U.P Electric Supply Company Limited, Allahabad. In Misc case No. 2746 of 1958 the first accused is the Agra Electric Supply Company, Limited. Agra.

1. In case No. 1209 of 1959 the first accused is the Agra Electric Supply Company, Limited, Agra. It is not necessary to give the description of each electric supply company in each of these cases. It is enough to say that all these companies are incorporated under the Indian Companies Act, and the managing agents of these companies are Martin Burn Limited. In the heading in the complaint in case No. 2830 of 1958 the electric supply company alone is mentioned without mentioning through whom the company was impleaded as accused. In cases Nos. 2748, 2750, 2751, 2829 of 1958 and Nos. 47, 48 and 638 of 1959 the supply companies have been impleaded as accused through their respective Resident Engineers. In cases Nos. 504 and 506 of 1959 the companies have been impleaded through three different persons in each case and in case No. 2746 of 1958 the company has been impleaded through four persons. In four cases Nos. 2747 and 2749 of 1958 and No. 505 and 1209 of 1959 not only have the companies been impleaded as accused but, in addition, certain other persons have also been impleaded as accused. These additional accused in these four cases are either the Governing Director or Directors of the managing agents Messrs Martin Burn Limited or the Chief Engineer or the Resident Engineer of the company concerned. It appears however, that, even in cases where the only accused impleaded is the electric supply company concerned, the prayer at the end in the complaint is that the Magistrate after taking cognisance of the offence committed by the company should put on trial the Resident Engineer himself.

2. One ground on which the powers of this Court are invoked by the applicants in these applications is that, on the facts given in the complaints and the prayers made in them, there was no justification for the trial of the individuals, whether Resident Engineers or others in their personal capacity. Two, other objections that were taken were based on grounds arising from the particular offences alleged to have been committee on the facts mentioned in the complaints. One set of cases relates to prosecutions under Sections 47 of the Indian Electricity Act, 1910, for non-observance of the provisions of cl. (vi)(1) of the Schedule to that Act. Another set of cases related to the offence punishable under R. 141 of the Indian Electricity Rules on the allegation of the non-observance or breach of R. 54 of those rules. Learned counsel for the applicants in these applications urged that these prosecutions were not at all justified inasmuch as the provisions, the breach of which was alleged, against the accused and was the subject-matter of the complaints, were such that their breaches might give rise to civil liabilities or to the liability of cancellation of licences or other penalty, but could not be the subject-matter of a criminal prosecution.

3. We have heard Mr. Jagdish Swarup for the petitioners and Mr. Gopal Behari for the U.P Electric Inspector as also U.P State.

4. When these applications came up for hearing before us a preliminary question arose as to whether, in the circumstances which have been mentioned above, this Court would be justified or would be acting properly in exercising its extraordinary power under Section 561-A of the Cr PC as prayed for by the applicants. It appears to us that the remedy which has been sought by the applicants is not appropriate and there are no sufficient grounds for the exercise of the power under Section 561-A of the Cr PC by this Court. In all these cases, summonses have been issued by the Magistrates for attendance of the accused.

5. In some cases all the accused have put in appearance while in others only some have done so. In one case, we are told, proceedings have reached the stage where prosecution evidence has been recorded & only the recording of the defence evidence remains. It appears to us that the points which are being raised before us by means of these applications could have been easily raised and should appropriately have been raised by the accused before the Magistrates who had taken cognizance of these offences. If the points could be decided without recording any evidence, the Magistrates could have been requested to decide those points and drop the proceedings in case they came to the view that the prosecution could not proceed.

6. The interpretation of the rules or the provisions of the Act must at the initial stage be left to the Magistrates concerned. It is for them to decide what are the rules the non-observance of which renders the person responsible for the observance of those rules liable for prosecution for the offence made punishable either under Section 47 of the Indian Electricity Act or under R. 141 of the Indian Electricity Rules. We do not think that it will be at all proper for us to go into this question at this stage.

7. If the accused invite a decision on these points at a preliminary stage and the Magistrate gives his decision one way or the other, the party aggrieved can always seek appropriate remedy by moving a revision application before the Sessions Judge or the District Magistrate requesting that a reference be made to this Court and, if even that request is refused, by presenting a revision application in this Court. That is the appropriate remedy which is provided under the provisions of the Code of Criminal Procedure and while Such a procedure exists we do not think that we are (Called upon to exercise our, extraordinary powers under Section 561-A of the Cr PC.

8. There, however, remains, the question relating to the proceedings being taken in these complaints against the persons who are either Resident Engineers of the various supply companies or Governing Directors of the managing agency company or the Chief Engineer of the supply company. It has been urged by Mr. Jagdish Swaroop on behalf of the applicants that at least the proceedings against these individuals are totally, unjustified, because the complaints themselves do not make out that any offences have been committed by them.

9. This is also a point which could have been taken before the Magistrate who could have decided it, but considering the circumstance that the copies of all the complaints all the cases have already been put before us and arguments have also been addressed to us by, learned counsel for the parties on this point and having regard to the further fact that at least in one case the Magistrate has continued the proceedings to the extent of recording the whole prosecution evidence, we think that this is a point which should appropriately be considered by us at this stage as further continuance of the proceedings against these individuals if not at all warranted by law would wholly result in their unnecessary harassment.

10. Having considered this aspect of the matter carefully, we are still of the opinion that it will not be proper for us to exercise our extraordinary powers under Section 561-A of the Cr PC. It appears to us that the power which we can properly exercise and should exercise is the one conferred on us by Section 439 of the Cr PC. Ordinarily we would have directed the applicants to move the Magistrates and request them to drop the proceedings against these individuals on the ground mentioned above and, it the Magistrates had refused to do so, the applicants could have come up and moved us under Section 438 of the Cr PC either directly or through the Sessions Judge or the District Magistrate.

11. There is, however, another aspect which is to be kept in view and it is that in all these cases the Magistrates issued summonses for the appearance of these individual accused under Section 204 of the Cr PC & the question that is being raised really goes to the extent of challenging the correctness and validity of the proceedings taken by the Magistrates in these cases. The Magistrates could issue summonses for the appearance of these persons as accused only if in their opinion the complaints taken together with any statements recorded or enquiries made under Sections 200 to 202 of the Cr PC showed that an offence had been committed by each of these individual accused in respect of which summonses could issue against them.

12. In this case it is not suggested that, after the complaints were filed any statements were recorded under Section 200 of the Cr PC. In fact, since the complaints were filed by a public servant, Section 200 of the Cr PC did not require his statement to be recorded. It is also not suggested that any enquiry was made under Section 202 of the Cr PC so that, for the purpose of forming his opinion in order to issue sommons under Section 204 of the Cr PC the only material available to the Magistrates were the various complaints.

13. We have, therefore, to see whether the Magistrates in issuing the summonses acted rightly; and, in view of the fact that some of the persons who are being summoned as accused are not even residing in U.P, but at long distances, we think that these cases are appropriate where we should exercise our powers under Section 439 of the Cr PC either on the basis that we should treat these applications as applications under Section 439 of the Cr PC, or, in the alternative, on the basis that information having come to us by means of these applications it would be appropriate for us to exercise our powers suo motu under Section 439 of the Cr PC. It is in this light that we have heard learned counsel for the parties on this point.

14. It appears to us that in 11 of the cases, barring four cases to which miscellaneous cases Nos. 2749 and 2747 of 1958 and No. 505 of 1959 relate, the only person mentioned as the accused in the heading was the electric supply company concerned. In one case, it was not mentioned through whom the company was impleaded as an accused whereas in all other cases the company was impleaded as accused through the Resident Engineer. In most of those cases, though in the body of the complaint the allegations were in respect of acts or omissions by the electric supply company concerned only and though in the prayer the first part was that the Magistrate is requested to take cognizance of the offence committed by the company, the last part of the prayer was that the person to be put on trial after cognizance was taken was the Resident Engineer.

15. It also appears that, as a result of this prayer, the Magistrates very lightly issued summonses for the Resident Engineers themselves instead of issuing summonses for the appearance of the electric supply companies through the Resident Engineers. Since in the complaints themselves, there was no mention that the Resident Engineers as such had committed any offence and even in the first part of the prayer the request to the Magistrates to take cognizance was only in respect of the offence committed by the companies, it is clear that the prayer for putting the Resident Engineers personally on trial was very inappropriate and should not have been granted by the Magistrates. In all these cases, the accused who was to be tried and who should have been tried was the electric supply company concerned though all the time the company could be directed to put in appearance as accused through the Resident Engineer.

16. We consider that this aspect having come to our notice, a direction should be issued to all the Magistrates concerned to make sure that the trial before them proceed against the electric supply companies through the Resident Engineers concerned and not against the Resident Engineers themselves in their personal capacities or even by describing the prosecution as being in their representative capacities. When the Resident Engineers appear the appearance would be treated as the appearance of the company being prosecuted. We direct the Magistrates to proceed accordingly.

17. Then there remain the four cases in which, apart from the companies, certain individuals have been impleaded as accused in their personal capacities. We have carefully gone through the complaints in these four cases and we find that in none of these complaints are any facts alleged which would show that there was any breach or non-observance of any provision of the Act schedule or rules of the Indian Electricity Act by any act of commission or omission on the part of the individuals. There is not even any suggestion that, if there has been any non-observance of any rule or breach of any rule on the part of the electric supply company, which is the principal accused in each of these cases, the responsibility for that non-observance or breach lay on any of these individual accused. We may also mention that, in all these four cases the stage at present is that the examination of prosecution witnesses has not yet started. In some probably all the accused have put in appearance, while in others that is not so. In fact, the information of the learned counsel appearing for the State in these cases is that in none of these four cases have the individual accused yet appeared. Consequently, in deciding whether the prosecutions can continue, the only material available are the four complaints in the tour cases and there is no additional material by way of evidence which needs to be considered by us. On the facts given in the complaints, it is dear that the facts alleged by the complainant do not even make out a prima facie case against any of these individuals for breach of any of the rules framed under the Indian Electricity Act or the provisions of that Act as there are no incriminating allegations against these individuals. The proceedings that are being taken in the I trial of these individuals are, therefore, without any justification. No summonses should have been issued against them under Section 204 of the Cr PC and they should not have been put on trial. In cases where they are not yet on trial there is no justification for enforcing their attendance in court and putting them on trial. We, therefore, consider that the proceedings against these individuals going on under these complaints should be quashed by us in exercise of our powers under Section 439 of the Cr PC. We accordingly quash all proceedings in these four cases against these individual accused and set aside the orders of the Magistrates directing issue of summonses for their attendance under Section 204 of the Cr PC. We may make it clear that this order will in no way affect proceedings which might be taken by the Magistrates on these complaints against the electric supply companies concerned provided those proceedings are taken in accordance with the principles which we have laid down in connection with the remaining 11 accused. The stay orders in all these cases are discharged.

KC/H.G.P

18. Order accordingly.