In the High Court of Jharkhand at Ranchi
W.P.(Cr.) No.266 of 2009
M/s. Shree Bhagwati Rice & Flour Mills and another... Petitioners
VERSUS
State of Jharkhand and others................................. Respondents
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioners : Mr.Ajit Kumar
For the J.S.E.B : Mr. Rajesh Shankar
For the State : Mr. R.K.Singh, G.P.IV
Reserved on 10.8.2009 Pronounced on 12. 8.2009
5. 12.8.09
. Through this writ application extraordinary jurisdiction of this
Court as enshrined under Article 226 of the Constitution of India
has been invoked for directing the respondent no.2, Superintendent
of Police, Deoghar and also respondent no.3, Officer-in-Charge of
Nagar Police Station, Deoghar to get the computerized meter
seized in connection with a police case tested/analyzed by a
competent Testing Agency before the meter looses its memory.
It was submitted on behalf of the petitioners that M/s.
Bhagwati Rice & Floor Mills situated at Baijnathpur, Deoghar on
being given electric connection by the Jharkhand State Electricity
Board in LTIS category was consuming electric energy and was
making payment regularly and the trend of the consumption would
show that it was always on increasing side for which payment was
always made but suddenly on 8.7.2009, officials of the Board laid
a raid in the premises of the petitioners and on inspection, seal of
the meter box put by the Board was allegedly found tampered with
and on its removal, when it was examined body seal as well as
terminal cover seal were allegedly found to be tampered with and
hence, first information report was lodged alleging therein that the
accused persons by tampering with seals has been consuming
electric energy stealthily and thereby committed offence under
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section 135/138 of the State Electricity Act. The said case was
registered as Nagar P.S. case no.216 of 2009 under section
135/138 of the State Electricity Act.
It was further submitted that the raiding party admittedly
never found any foreign device to disturb the meter circuit and as
such, any manipulation obstructing the reading of the meter must
have been recorded and stored in the electric meter which is a
Tamper Proof Meter and hence, if it is tested by an expert agency,
everything would come to the surface as to whether there has
been any theft of the electric energy but if the Investigating
Agency would cause delay in getting the electric meter tested,
every reading which is in the memory of the electric meter will
disappear and in that event, thereby there would be miscarriage of
justice and under this situation, Investigating Agency be directed
to get the reading of the meter analyzed.
However, learned counsel appearing for the Electricity Board
submitted that having found several seals fixed at the meter
tampered with, case was instituted for theft of electric energy. On
institution of the case the police has taken in possession of the
meter in question and now the Investigating Agency would
proceed with the investigation in the manner which it deems fit
and proper as he is free to proceed with the investigation in its own
way and under this situation, it would always be unwarranted if he
is directed to investigate in a particular manner.
Upon it learned counsel appearing for the petitioners
submitted that there has been no doubt that the Investigating
Agency is free to investigate the matter in its own way but if it
appears to the Court that he is not proceeding in the manner to
get the real fact to come to the surface, the Court in exercise of
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extraordinary jurisdiction can certainly direct the Investigating
Agency to do justice to the parties.
In support of his submission learned counsel has referred to
a decision rendered in a case of Sashikant vs. Central Bureau
of Investigation and others [(2007) 1 SCC 630].
Having heard learned counsel appearing for the parties, it
does appear that after the case was instituted, Investigating
Agency is proceeding with the matter of the investigation and it is
not known to us as to in what manner the Investigating Agency is
proceeding with. It is only the speculation as it appears from the
submission that the Investigating Officer has not been
contemplating to get the data of the electronics meter analyzed by
an expert agency. Assuming that the Investigating Officer has not
been contemplating to get the data analyzed whether this Court in
that situation does have power to direct the Investigating Officer to
investigate the case in a particular manner, the answer certainly
would be in negative.
In a number of decisions the Hon’ble Supreme Court has
held that the police has statutory right to investigate into the
circumstances of any alleged cognizable offence without authority
from a Magistrate and that power of the police to investigate
cannot be interfered by the High Court in its exercise of power
under section 482 of the Code of Criminal Procedure or
extraordinary power as enshrined under Article 226 of the
Constitution of India.
In this regard I may refer to a decision of the apex Court in
a case of Divine Retreat Centre vs. State of Kerala and
others [(2008) 3 SCC 542] wherein it has been observed as
under:
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” It is altogether a different matter that the High
Court in exercise of its power under Article 226 of the
Constitution of India can always issue appropriate
directions at the instance of an aggrieved person if
the High Court is convinced that the power of
investigation has been exercised by an Investigating
Officer mala fide. That power is to be exercised in
rarest of the rare cases where a clear case of abuse
of power and non-compliance with the provisions
falling under Chapter XII of the Code is clearly made
out requiring the interference of the High Court. But
even in such cases, the High Court cannot direct the
police as to how the investigation is to be conducted
but can always insist for the observance of process as
provided for in the Code.”
Even in a case referred to above on behalf of the petitioners,
it has been held that ordinarily it is not within the province of the
Court to direct the Investigating Agency to carry out investigation
in a particular manner, writ court ordinarily would not interfere
with the functioning of the Investigating Agency, rather only in
exceptional cases it may do so.
The instant case never appears to be an exceptional case as
nothing is on the record to show mala fide on the part of the police
nor does it appear a case of non-compliance of the provisions
falling under Chapter XII of the Code.
Under this situation, petitioner is not entitled to relief as
sought for and hence, this application is dismissed. However,
before parting with this order, it may be observed that if the entire
case rests on the analysis of the date of the electronic meter, it is
normally expected that in order to arrive at the right conclusion one
would go for the test.
(R.R.Prasad, J.)
ND/