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CR.MA/3261/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3261 of 2010
In
CRIMINAL
REVISION APPLICATION No. 197 of 2010
======================================
SIKANDERKHAN
SAFDARKHAN PATHAN & another
Versus
STATE
OF GUJARAT
======================================
Appearance :
MR
IM MUNSHI for Applicants
Mr.
Shivang Shukla, Additional Public Prosecutor, for
respondent
======================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 06/04/2010
ORAL
ORDER
Rule.
Service is waived.
Heard
learned advocate for the parties.
Considering
the averments made in paragraph 3 of the application, in my view,
sufficient cause is made out to condone delay of 22 days in filing
Criminal Revision Application. Delay is condoned. This application is
allowed. Rule is made absolute.
(ANANT
S. DAVE, J.)
(swamy)
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 197 of 2010
======================================
SIKANDERKHAN
SAFDARKHAN PATHAN & another
Versus
STATE
OF GUJARAT
======================================
Appearance :
MR
IM MUNSHI for Applicants
Mr.
Shivang Shukla, Additional Public Prosecutor, for
respondent
======================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 06/04/2010
ORAL
ORDER
1 This
revision application under Section 397 read with Section 401 of the
Code of Criminal Procedure, 1973 [for short, ‘the Code’] is preferred
against the order dated 26.9.2009 passed by the Special Court under
the Electricity Act, Ahmedabad City, below Exh.7 in Electricity
Special Criminal Case No.5 of 2009 by which the application preferred
by the applicants under Section 227 of the Code for discharge came to
be rejected.
2 The
learned advocate for the applicants submits that, as such, there is
no evidence against the applicants and they are not at all involved
in the alleged case of theft registered at C.R. No.147 of 2005 dated
31.3.2005 with the GEB Police Station, Sabarmati, Danilimda,
Ahmedabad, for the offences punishable under Sections 135 and 150 of
the Electricity Act, 2003. It is further submitted that in the
statement recorded under Section 161 of the Code, i.e. the complaint,
only names of the applicants are given and no surname or residential
addresses of the applicants are mentioned and one co-accused
Hamidbhai expired and, therefore, after lapse of 5 to 6 months, the
Investigating Agency was able to record statement of six other
members of the raiding team and, thus, there is no sufficient
material to proceed against the applicants and, therefore, the
learned Judge ought to have exercised powers
under Section 227 of the Code. It is further submitted that
considering the decision of the Court dated 18.12.2007 in Criminal
Appeal No.1143 of 2007 and the decision dated 18.3.2008 in Criminal
Appeal No.1061 of 2007 and the law laid down by the learned Single
Judge about interpretation of sub-section (1) of Section 135 of the
Electricity Act about presumption etc., the learned Judge ought to
have discharged the applicants.
3 Having
heard the learned advocate for the applicants and the learned APP and
considering the facts and circumstances of the case, I do not find
any substance in the submissions of the learned advocate for the
applicants in as much as the complaint dated 31.3.2005 specifically
mentions about names of the applicants i.e. Sikanderbhai and Faruk
Badshah, residing at Gulmohar Park, Narol. It further avers that the
raiding party of the Ahmedabad Electricity Company when raided the
premises found that an extra cable was connected with service
No.2191775 and electricity was supplied illegally to 50 houses. The
raiding party has further found that seals of the meter were missing
and the applicants have applied direct cable of aluminium by which
distribution of electricity was made without any licence.
4 In
view of the above facts, when the complaint is registered by the
authorized person on behalf of the Electricity Company namely the
Security Officer and on perusal of the statements of the residents
and the members of the raiding party, it cannot be said that, at the
stage of framing charge, sufficient material against the applicants
did not exist. On the contrary, prima-facie satisfaction of the
learned Judge on perusal of the charge sheet and other materials
establishes that, though full names of the accused persons were not
given in the complaint, but the statements of the members of the
raiding party did give such information which was sufficient to frame
charge. It is trite that, at the stage of exercise of power under
Section 227 of the Code, no detailed scrutiny of appreciation of
evidence can be gone into. The decisions relied upon by the learned
advocate for the applicants are pertaining to criminal appeals where
the learned Single Judge of this Court had an occasion to deal with
the cases after conviction which was challenged and, therefore, the
same cannot be applied to the facts of the present case.
5 Considering
the above, there is no substance in this application. This
application is rejected summarily.
(ANANT
S. DAVE, J.)
(swamy)
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