INDRAJIT MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner assails the finding of guilt, conviction under 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.

(2.) 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 under S. 41 of the Act. On receipt of the said prosecution report, cognizance under 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 under S. 313 of the Criminal Procedure Code, 1973 (in short the Code') was recorded and on admission, he was found guilty under S.41 of the Act.

(3.) 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 under 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 licensee 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. Section41 prescribes a penalty for contravention of S. 28. The essence of aberration culpable under section 28 is that the person who is not a licencee must he engaged in the business of supply of electricity to the public. As observed by this ('ours in the case of Narasimha Choudhury v. State (Executive Engineer, Ganjam South Electrical Division, Berhampur) : (1990) 2 Orissa LR 481 : (1991 Cri LJ 1025) business involves a concept of continuity, regularity and intendment of commercial activity. There ii 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 sunder 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.