# Sabir Ali v. The State of U.P. & Ors - **Citation:** (2024) 2 ILRA 223 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2024-02-16 - **Case number:** Application U/S 482 No. 1140 of 2024 - **Bench:** Subhash Vidyarthi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sabir-ali-v-the-state-of-u-p-ors-51412 - **Pages:** 4 ## Headnote Criminal Law - Criminal Procedure Code, 1973 - Sections 41(1), 161 & 482 - Indian Electricity Act, 2003 - Section 135 - Application u/section 482 Cr.P.C. - filed for quashing of the charge-sheet and the order taking cognizance - offence of theft of electricity - FIR lodged - applicant filed a writ petition - disposed of - with the observation that the applicant may avail benefit under Section 41(1) Cr.P.C. - charge-sheet - cognizance taken - trial initiated - instant writ petition - Court observed that (i) nonsubmission of videographic evidence does 224 INDIAN LAW REPORTS ALLAHABAD SERIES not constitute valid grounds for quashing proceedings when the FIR and St.ments under Section 161 Cr.P.C. disclose commission of a cognizable offence - (ii) reliance placed on C.B.I. Vs Aryan Singh, wherein the Hon'ble Supreme Court held that while exercising powers under Section 482 Cr.P.C., the Court is not to conduct a mini trial, nor is the prosecution required to prove its case at this stage - the Court reiterated that, while exercising the powers under Section 482 of the CrPC court has a limited role to examining whether, based on the prosecution's allegations, a prima facie case for trial is made out - defence of the accused cannot be considered at this stage - hence, the applicant is held guilty of committing theft of electricity by damaging the service line coming to his premises, which is sufficient for trail of an offence under section 135 of the Electricity Act - accordingly, the application was found to be devoid of merit and dismissed. (Para - 11, 13, 14) Application Dismissed. (E-11) List of referred Cases: - ## Text 2 All. Sabir Ali Vs. The State of U.P. & Ors. 223 deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised." 27. While making the aforesaid observation, the Hon'ble Supreme Court did not take into consideration the provision contained in Section 14-A of the Act of 1989. Therefore, the case of Prithvi Raj Chauhan (Supra) is also not relevant for deciding maintainability of an application under Section 482 Cr.P.C. where the applicant has a statutory remedy of filing an appeal under Section 14-A of the Act of 1989. 28. In Union of India v. Cipla Ltd., (2017) 5 SCC 262, the Hon'ble Supreme Court held that the Court is required to adopt a functional test vis-à-vis the litigation and the litigant. What has to be seen is whether there is any functional similarity in the proceedings between one court and another or whether there is some sort of subterfuge on the part of a litigant. It is this functional test that will determine whether a litigant is indulging in forum shopping or not. 29. In the present case, the applicant has a statutory remedy of filing an appeal under Section 14-A of the 1989 Act, which remedy is available to him as a matter of right, and that appeal would also lie before this High Court, albeit before a different Bench. The scope of enquiry in the appeal will obviously be larger than the scope of enquiry while deciding an application under Section 482 Cr.P.C., where disputed questions of facts cannot be entertained. Thus the appeal would appear to be more beneficial to the applicant. The only reason for filing an application under Section 482 Cr.P.C. instead of filing an appeal appears to be avoiding a particular Bench of this Court itself. The facts stated above clearly establish that it is a typical example of forum shopping, which practice has always been deprecated by the Courts. 30. In view of the foregoing discussions, the application under Section 482 Cr.P.C. is dismissed leaving it open for the applicant to file an appeal under Section 14-A of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. --------- (2024) 2 ILRA 223 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 16.02.2024 BEFORE THE HON'BLE SUBHASH VIDYARTHI, J. Application U/S 482 No. 1140 of 2024 Sabir Ali ...Applicant Versus The State of U.P. & Ors. ...Opposite Parties Counsel for the Applicant: Dilip Kumar Shukla Counsel for the Opposite Parties: G.A., Aprajita Bansal Criminal Law - Criminal Procedure Code, 1973 - Sections 41(1), 161 & 482 - Indian Electricity Act, 2003 - Section 135 - Application u/section 482 Cr.P.C. - filed for quashing of the charge-sheet and the order taking cognizance - offence of theft of electricity - FIR lodged - applicant filed a writ petition - disposed of - with the observation that the applicant may avail benefit under Section 41(1) Cr.P.C. - charge-sheet - cognizance taken - trial initiated - instant writ petition - Court observed that (i) nonsubmission of videographic evidence does 224 INDIAN LAW REPORTS ALLAHABAD SERIES not constitute valid grounds for quashing proceedings when the FIR and St.ments under Section 161 Cr.P.C. disclose commission of a cognizable offence - (ii) reliance placed on C.B.I. Vs Aryan Singh, wherein the Hon'ble Supreme Court held that while exercising powers under Section 482 Cr.P.C., the Court is not to conduct a mini trial, nor is the prosecution required to prove its case at this stage - the Court reiterated that, while exercising the powers under Section 482 of the CrPC court has a limited role to examining whether, based on the prosecution's allegations, a prima facie case for trial is made out - defence of the accused cannot be considered at this stage - hence, the applicant is held guilty of committing theft of electricity by damaging the service line coming to his premises, which is sufficient for trail of an offence under section 135 of the Electricity Act - accordingly, the application was found to be devoid of merit and dismissed. (Para - 11, 13, 14) Application Dismissed. (E-11) List of referred Cases: - 1. C.B.I. Vs Aryan Singh, 2023 SCC Online SC 379, 2. St. of Har. Vs Bhajan Lal : 1992 SCC (Crl) 426, 3. K. Sundaram Vs S.P. Rajmanikam & Anr. 1987 CrL.J.247, 4. Dakshin Har. Bijli Vitran Nigam Limited Vs Poonam Vashisth, 2008 SCC OnLine P&H 1515, (Delivered by Hon'ble Subhash Vidyarthi, J.) 1. Heard Sri D.K. Shukla, the learned counsel for the applicant, Sri Akhilesh Kumar Vyas, the learned AGA-I for the State, Sri Jayant Mohan Verma holding brief of Mrs. Aprajita Bansal, the learned counsel for the opposite party no. 3. 2. By means of the instant application filed under Section 482 Cr.P.C., the applicant has sought quashing of the impugned charge sheet dated 13.04.2023 filed against the applicant arising out of Case Crime No. 797 of 2020, under Section 135 of Indian Electricity Act, 2003, Police Station Anti-power Theft, District Unnao, pending in the court of Additional District Judge-4, E.C. Act, Unnao in S.T. No. 1127 of 2023 as well as for setting aside the impugned order dated 20.09.2022 by which cognizance has been taken by the Additional District Judge-4, E.C. Act, Unnao in Case Crime No. 797 of 2020, under Section 135 Indian Electricity Act, 2003, Police Station Anti-Power Theft, District Unnao in S.T. No. 1127 of 2023. 3. In the FIR lodged on 06.07.2020 it was alleged that when a team of engineers and officials of Madhyanchal Vidyut Vitran Nigam Limited had checked the premises of the applicant, it was found that he had cut the service cable and was consuming electricity by bypassing the meter installed at his premises, which was an offence under Section 135 of the Electricity Act. 4. The learned counsel for the applicant has submitted that The applicant had filed Writ Petition No. 21799 (M/B) of 2020, which was disposed of by means of an order dated 23.11.2020 by observing that the applicant is entitled to get benefit of the provisions contained under Section 41(1) Cr.P.C. During investigation, the Investigating Officer has recorded that the officials of Madhyanchal Vidyut Vitran Nigam Limited did not provide a CD or other device containing videography record of the testing. 5. The learned counsel for the applicant has submitted that the meter that 2 All. Sabir Ali Vs. The State of U.P. & Ors. 225 was installed on the premises of the applicant has not been tested so as to ascertain any tempering etc. made by the applicant on it. 6. Section 135 of the Electricity Act provides that whoever dishonestly damages any wire or causes it to be damaged so as to interfere with the proper or accurate metering of electricity, shall be guilty of committing theft of electricity. 7. The learned counsel for the applicant has relied upon a judgment of the Punjab and Haryana High Court in Dakshin Haryana Bijli Vitran Nigam Limited v. Poonam Vashisth, 2008 SCC OnLine P&H 1515, wherein it was held that the rules require that to prove the theft of electricity it was the basic requirement that the meter must have been checked from the concerned laboratory. 8. Section 135(1)(c) of the Electricity Act, 2003 provides as follows:- "135. Theft of Electricity.- (1)Whoever, dishonestly,- * * * (c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or" 9. A bare perusal of the provisions contained in 135(1)(c) of the Electricity Act indicates that an offence of theft of electricity is made out when the service cable is cut so as to draw electricity and in such a contingency, there is no need of any tempering having been made with the meter. Therefore, where the allegations are such as have been levelled in the present case, there is absolutely no need for checking of the meter. The 'rules referred to in the judgment in Dakshin Haryana Bijli Vitran Nigam Limited, might have been different in that state, which are not applicable in the state of U.P. 10. The learned counsel for the applicant has next relied upon the judgment of the Orissa High Court in K. Sundaram v. S.P. Rajmanikam & Anr. 1987 CrL.J.247. This case arose from a judgment of acquittal passed after conclusion of the trial, after assessment of the evidence led by the parties. In the present case, that stage is yet to reach. 11. So far as submission regarding non furnishing of the compact disc or other device containing videography of the incident is concerned, that would be a factor to be taken into consideration by the trial court while evaluating evidence by the parties. For taking cognizance of the offence and summoning the accused to face the trial, only this much is sufficient that the FIR discloses commission of offence and the FIR allegations are supported by the statements recorded under Section 161 Cr.P.C. Therefore, the mere non furnishing of proof of videography will not give rise to a ground for quashing of the proceedings without holding a trial. 12. In State of Haryana v. Bhajan Lal : 1992 SCC (Crl) 426, the Hon'ble Supreme Court has held that "the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the 226 INDIAN LAW REPORTS ALLAHABAD SERIES extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." 13. The aforesaid law has been reiterated by the Hon'ble Supreme Court in C.B.I. v. Aryan Singh, 2023 SCC Online SC 379, wherein it has been held that while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct a mini trial. It does not require the prosecution/investigating agency to prove the allegations. While exercising the powers under Section 482 of the CrPC the Court has very limited jurisdiction and is required to consider "whether any sufficient material available to proceed further against the accused for which the accused is required to be tried or not". 14. When I examined the facts of the present case in light of the aforesaid law laid down by the Hon'ble Supreme Court, it is apparent that the applicant is held guilty of committing theft of electricity by damaging the service line coming to his premises, which is sufficient for trial of an offence under Section 135 of the Electricity Act. While deciding the application under Section 482 Cr.P.C., the Court has only to see whether on the basis of prosecution allegations, a case for trial of the accused is made out or not and the Court cannot examine defence of the accused at this stage. 15. The application lacks merit and is accordingly dismissed. --------- (2024) 2 ILRA 226 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 19.02.2024 BEFORE THE HON'BLE SUBHASH VIDYARTHI, J. Application U/S 482 No. 1271 of 2024 Rajbir Singh ...Applicant Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Applicant: Abhishek Misra Counsel for the Opposite Parties: G.A. Criminal Law - Criminal Procedure Code, 1973 - Sections 190 & 482 - Indian Penal Code, 1860 - Sections 323, 504 & 506 - Application U/s 482 Cr.P.C. - for quashing of entire criminal proceedings - offences under Sections 323, 504, 506 IPC - complaint case - cognizance taken - trial commenced - parties are real brothers involved in a civil dispute over a disputed Will - plea raised that criminal case was lodged with malicious intent and allegations were of civil nature - Court examined whether the allegations disclosed cognizable offences and whether invocation of criminal law was justified - reliance placed on precedents including Usha Chakraborty Vs St. of W.B.- held, mere existence of civil dispute or strained relations does not ipso facto justify quashing - complaint contained specific allegations attracting penal provisions - no ground made out for interference under Section 482 Cr.P.C. - application dismissed. (Para - 5, 6, 9, 10) Application Dismissed. (E-11) List of referred Cases: - 1. Prarmjeet Batra Vs St. of Uttrakhand & ors.- 2013 vol. 11 SCC 673, 2. Usha Chakraborty & anr. Vs St. of W.B.& anr. - (SLP (Crl.) 5866 of 2022) 3. Mohd. Allaudin Khan Vs St. of Bihar - 2019 vol. 6 SCC 107, 4. Priti Saroff Vs NCT of Delhi - 2021 Vol. 16 SCC 142.