SAYED ALI SK Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This revisional application has been field under Article 227 of the Constitution of India read with section 482 of the Cr. PC against the order dated 23.12.2004 passed by the ld. Additional Sessions Judge, Kalna in Criminal Revision No. 20 of 2004 whereby he confirmed the Order No. 10 dated 30.07.2004 passed by the ld. SDJM, Kalna in G.R. Case No. 442 of 2003. Case ofthc petitioner is that he is an unemployed youth and a scheme was approved in his favour by the Government of West Bengal for opening one Atachaki Centre. For that purpose the petitioner applied for new electric connection to the W.B.S.E.B. The Station Superintendent, Nandan Ghat Group Electric Supply directed the petitioner to deposit quotation amount in the office which the petitioner complied on 18.02.1998. But in spite of that the W.B.S.E.B. did not take any step for supply of the electric connection at the petitioner's premises to run the said business of Atachaki. Finding no other way out, the petitioner filed a suit in the Court of ld. Civil Judge, Junior . Division, Kalna against the W.B.S.E.B. and in the said suit the petitioner's prayer for mandatory injunction was allowed and W.B.S.E.B. was directed to give electric connection to the petitioner. But the said Board did not supply the electric connection. Instead, to harass the petitioner, it lodged a FIR against him and the Police started criminal case against the petitioner under section 135 of the Indian Electricity Act read with section 379 of the IPC and seized some articles. Said case was registered as G. R. Case No. 442 of 2003 and is pending in the Court of ld. SDJM, Kalna. The petitioner prayed for return of those articles but the ld. Magistrate was pleased to reject the said prayer. Against the said order the petitioner preferred a revisional application berore the Additional Sessions Judge, Kalna who also was pleased to reject the said prayer. Being aggrieved by, and dissatisfied with, the said order, the petitioner prererred this revisional application on the ground that both the Courts below were not justified in refusing the petitioner's prayer for return all those articles.

(2.) I have heard the submission of the ld. Advocates for both the sides. It appears from the order of the ld. Civil Judge, Junior Division which is Annexure P-1, that in fact on the prayer of the petitioner a mandatory injunction order was passed directing the W.B.S.E.B. to give electric connection to the petitioner's premises after observing the formalities. So prima facie it appears that the petitioner has been able to prove that he had obtained a valid order from a Court of Law in support of his claim of running the business. Be that as it may, it appears that police started a case under section 135 of the Indian Electricity Act read with section 379 of the IPC against the petitioner for the alleged commission of theft of electricity in the premises in question. From the order of the Civil Court as well as from the order of the Criminal Court, as filed in connection with this case, it appears that there is a dispute going on in between the parties over the running of the Atachaki business. Certainly, police has go every right to seize the articles which were used for the commission of the offence. But so far as this case is concerned, it appears from the copy of the petition dated 16.08.2004 which has been annexed as Annexure P-3 that a prayer was made before the ld. Additional Sessions Judge for return of the seized articles. The list of those articles shows that one motor, one haller, one Atachaki, Belt, weighing scale and pully were seized in connection with that criminal case. Admittedly those articles cannot be used for the purpose of committing theft from the main electric line of the said Electricity Board. Of course, it has been argued that if ultimately the prosecution case is proved, then those articles would be liable to be confiscated. Without going into the merit of this submission, it can safely be said that those articles, as seized by the police, are now lying in the P.S. Malkhana and as such there cannot be any dispute that those are being damaged unnecessarily. No purpose will be served in allowing those articles to be damaged in this way. To my mind, the ld. Courts below failed to appreciate this aspect of the matter while rejecting the prayer of the petitioner for return of all those articles. There is reason to believe that the ld. Courts below failed to exercise the jurisdiction properly, as vested in them while rejecting the prayer of the petitioner in this respect. I think that it will be fair and proper to allow those seized articles to be returned in favour of the petitioner by executing sufficient amount of bond on condition to produce the same as and when called for. If that step is taken then the interest of the prosecution as well as the defence will be protected.

(3.) Considering all these things, I am of opinion that it is a fit case where the revisional application should be allowed by directing the ld. Magistrate to return those articles in favour of the petitioner by obtaining sufficient amount of bond in respect of those properties.