Chandan Kumar vs State

K.N. Phaneendra, J.—Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent - State Perused the records.

The petitioner is arrayed as A1 in Spl.C. (KPTCL) No. 31/2014 on the file of the I Addl. District and Sessions Judge & Special Judge, Davanagere under IPC provisions and under Indian Electricity Act. The petitioner has approached the trial Court with an application u/S. 227 of Cr.P.C. seeking discharge for the provisions invoked by the police u/S. 304-A of IPC and also u/S. 35 of the Electricity Act, 2003 and Rule 44A of the Indian Electricity Rules, 1956. The trial Court has dismissed the said application. Being aggrieved by the same, the present Revision Petition is filed.

The case of the prosecution before the trial Court is that the petitioner is the PDO of Tyavanagi Grama Panchayath village, Honnali Taluk, Davanagere District, is a non-gazetted official. It is an undisputed fact that survey No. 127 of the said village measures 4 acres 16 guntas. Out of that, an extent of 1 acre 20 guntas of land has been given to Tyavanagi Village Panchayath for the purpose of using the same as graveyard for the benefit of Lingayath community people. The Grama Panchayath has taken a decision to cover the said graveyard with barbed wire fence. It is alleged that the other accused persons 2 to 4 have taken electricity from the street light Pole to the barbed wire fence in order to avoid wrongful entry into the said property by any person or animal etc., A boy by name Darshan son of CW-1 Annappa went near the said barbed wire fence on the ill-fated day, when he came in contact with the said barbed wire fence, he was electrocuted and therefore, the police have registered a case for the above said offences. Further, the said Annappa has also given statement before police with regard to the death of his son. The police after collecting sufficient materials and also obtaining report from the Electricity Board have laid a charge-sheet for the above said offences.

The Electricity Departments report discloses that they have conducted inspection of the said spot and submitted a report to the Government. The said report further discloses that there was a Electric Pole in the street near grave yard which is fenced with barbed wire and there was a wire connecting the said pole and the barbed wire fence. Perhaps, that may be reason, electricity was passing through the said barbed wire fence.

The question that the trial Court has to decide is -

"Whether the petitioner is negligent in performing the duty as a PDO of the Grama Panchayath.?

It is the allegation of the prosecution that the said graveyard is well within the jurisdiction of the Grama panchayath and the PDO is the competent authority to supervise and take care of this graveyard. The said barbed wire fence was put up at the instance of the grama panchayath. Therefore, it is alleged that if at all any connection is taken to the barbed wire '' fence, it should have been informed to the public at large, so that the public at large would take care to not to come near the barbed wire fence, no caution board was put near the barbed wire fence.

It is the case of the accused that, without his knowledge, A2 to A4 have done that particular act, but it is the allegation of the prosecution that he is the person who has to supervise the graveyard and also the barbed wire fence in order to provide safety so far as the graveyard is concerned. Therefore, the prosecution has collected materials in this regard because the petitioner is working as a PDO of Grama Panchayath during that particular point of time and he was negligent in taking care of these aspects.

In order to frame charges, there is no need for the prosecution to establish that the materials are sufficient to convict the accused, but if suspicion is created on facts showing the involvement of the accused that itself is sufficient to frame charges. Ultimately, the Court has to draw inference on the basis of the evidence that may be led by the parties to find out whether any offence is committed by any of the accused.

The learned counsel for the petitioner strenuously contended that the petitioner has no knowledge about the electricity connection to the barbed wire fence and everyday he cannot come and supervise the said barbed wire fence etc. It all depends upon the fact that since how long, the said barbed wire fence was there and how long the electricity was taken to the barbed wire fence have to be established and whether the petitioner was negligent in not taking care with regard to the barbed wire fence put to the graveyard. All these points have to be tested on facts during trial.

The learned counsel also drawn my attention that the competent authority has not filed any complaint before the jurisdictional Magistrate. Therefore, the Court should not have taken cognizance under Section 304-A of IPC or under Section 135 of the Electricity Act, 2003. Section 151 of the Electricity Act, it says that -

"151. Cognizance of offences: No Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by appropriate Government or appropriate commission or any of their officer authorised 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:"

Sub-section (1) of Section 151 of the Electricity Act is substituted by Act 26 of 2007 w.e.f. 15.6.2007. The Act has been amended by incorporating the proviso. The said proviso further says that the Court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed u/S. 173 of Cr.P.C. 1973: The said proviso provided further that a special Court constituted under section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.

Looking to the above said provisions, it also empowers the police to file charge sheet u/S. 173 of Cr.P.C. More over, apart from the above, it is not the only offence invoked under the Electricity Act, but the police have also invoked Section 304-A of IPC and that has to be tried by the competent Court.

In view of the above said provisions and the materials on record, I also suspect complicity of the accused into the crime as I have already said that suspicion itself is sufficient to frame charges. Hence, the petition deserves to be dismissed.

Whatever the observations made by this Court while disposing of this Revision Petition shall not persuade the trial Court in any manner while dealing with the matter. The trial Court has to appreciate the evidence led by the prosecution to pass an order. Further added to that, the petitioner is at liberty to raise all his defence during the course of evidence before the Court.

Whatever observation made in the body of this order is only for the limited purpose of disposing of this petition. Trial Court should not take this into consideration at any stage of the case in future. It should decide the case on the evidence to be adduced by the parties.

With these observations, the Revision Petition stands dismissed.