Indrajit Mohanty vs State of Orissa and Another

A. Pasayat, J.—The petitioner assails the finding of guilt, conviction u/s 41 of the Indian Electricity Act, 1918 (in short the ''Act''), and consequential award of sentence to pay a fine of Rs. 600/-, with default sentence of simple imprisonment for thirty days.

A prosecution report is claimed to have been submitted with the Judicial Magistrate, First Class, Bhubaneswar alleging that the petitioner had extended power supply to nearby shops unauthorisedly, and thereby engaged himself in the business of supplying energy, and was thus liable u/s 41 of the Act. On receipt of the said prosecution report, cognizance u/s 41 of the Act was taken. The learned Magistrate has recorded that he had perused the documents (underlining by me), and thereafter cognizance was taken. He has further recorded that particulars of offence were read over and explained to the accused who allegedly pleaded not guilty, and did not claim for trial. The statement u/s 313 of the Criminal Procedure Code, 1973 (in short ''the Code'') was recorded and on admission, he was found guilty u/s 41 of the Act.

At this stage, it is relevant to refer to the impugned order. The same shows complete non-application of mind. No document accompanied the prosecution report. So the question of the learned Magistrate perusing any document did not arise. The question that survives for consideration is whether the petitioner was put to substance of accusation which he was required to meet. The examination of an accused u/s 313 of the Code is not an empty formality. Purpose of such examination is to bring the substance of accusation to the notice of the petitioner. Section 28 of the Act provides that a person other than a licencee shall not engage in the business of supplying energy to the public except with the previous sanction of the State Government and in accordance with such condition as the State Government may fix in this behalf and that any agreement to the contrary shall be void. Section 41 prescribes a penalty for contravention of Section 28. The essence of aberration culpable u/s 28 is that the person who is not a licencee must be engaged in the business of supply of electricity to the public. As observed by this Court in the case of Narasingha Choudhury Vs. State of Orissa, ) business involves a concept of continuity, regularity and intendment of commercial activity. There is no material in that regard brought on record by the complainant. There is no reference to Section 28 either in the prosecution report or order of cognizance and sequential sentence recorded by the learned Magistrate. While recording the statement u/s 313 of the Code, it was not indicated to the petitioner that he was guilty of being engaged in the business of supplying energy. There was even no reference to any statute, much less any particular provision. The entire proceeding seems to have been conducted in a mechanical manner without application of mind. The prosecution report indicates that the petitioner was a consumer with identification number 17-A-26/7. In the revision application it has been asserted that the connection in question stands in the name of Smt. Purnamasi Mohanty and not in the name of the petitioner. This contention has not been traversed. To add to the infirmity, the date of detection of the alleged contravention has not been indicated, though serial 1 of the prosecution report, which is required to indicate the place, date and time of occurrence, the following has been mentioned :

"Tankapani Road, ESSR, 11.15 a.m.".

The signature of the complainant bears a date which is 21-1-1987. If that is so, the proceeding could not have been initiated and finalised on 20-1-1987. Nothing more need be indicated to highlight the vulnerability of the proceeding.

In the facts and circumstances of the case therefore, I find that the conviction and sentence cannot be maintained. It appears that a sum of Rs. 600/ - has been realised from the petitioner. The same should be forthwith refunded to him.

The Criminal Revision is accordingly allowed