KEDAR NATH GOENKA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under section 482 of the Code of Criminal Procedure. 1973 for quashing cognizance of the offences under section 39/44 the Indian Electricity Act, 1910 read with section 379, Penal Code taken on 5 April, 1977 by the Special Judicial Magistrate, Patna against the petitioner Kedar Nath Goenka of Chowk Bazar, Monghyr on the basis of a complaint dated 30 March, 1977 made by Chitranjan Prasad, Assistant Electrical Engineer, Monghyr. The date and time of occurrence as alleged in the complaint is 30 March, 1977,1-30 p.m. The place of occurrence is said to be the khalihan of the accused in village 5 No Gumti, Police Station Moffusll in the district of Monghyr. The allegations made in the complaint are as follows :

(2.) Mr. Rajgarhiya for the petitioner contended that the allegations aforesaid do not constitute any offence and hence the order of the Special Judicial Magistrate dated 5 April, 1977 taking cognizance of the offence above mentioned should be quashed. In my opinion, the contention is sound. As held in Sharda Prasad v. State of Bihar, MR 1977 SC 1754, it is now settled law that where the allegations set out in the complaint or the charge-sheet do not constitute any offence it is competent to the High Court exercising its inherent jurisdiction under section 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence. The allegations set out in the complaint in the instant case, in my opinion do not constitute the offence of theft. Section 39 of the Indian Electricity Act, 1910 (briefly "the Act") runs as under :

(3.) Section 44 of the Act runs as follows :