Criminal Writ Petition No.281 of 2006

9th July, 2007

Petitioner Counsel: Shri. SHYAM DEWANI
Respondent Counsel: Shri. A. S. SONARE

JUDGMENT

JUDGMENT :- Rule. Heard finally with consent of parties.

2. This is an application under Section 482 of Criminal Procedure Code read with Articles 226 and 227 of Constitution of India.

3. Few facts may be stated as follows:

The applicant on the relevant date was working as Sub-Engineer in M.S.E.B. at Khamgaon. One Subhash Navkar was also working as Helper in M.S.E.B. at the relevant time, while Gokul Pawar was working as Assistant Wireman. The complainant was also working as Assistant Wireman in M.S.E.B. It is alleged that on 05-06-2000 the present applicant directed Gokul Pawar as well as Subhash Navkar to carry with them insulator and other things for changing the insulator on the electric pole No.2-C pole Shegaon Naka. They went there. It is alleged that when they went there they were informed by the present applicant that after taking the permission he has closed the supply on 11 KV line. Since the deceased as well as Gokul were told that the supply on 11KV line was closed they went to complete the job. Subhash climbed on one of the poles of 11 KV line in order to change the insulator. Gokul, Assistant Wireman went ahead to the next pole to fix the insulator. When he went ahead he heard a loud noise and shout and he found that Subhash had fallen down from the said pole. He reported the matter to the police. Upon this report the police registered the offence under Section 304-A of the Indian Penal Code. Charge-sheet has already been filed. After the charge-sheet came to be filed the present applicant accused filed a revision before the Court of Sessions against Magistrate taking cognizance of the offence under Section 304-A, Indian Penal Code. Learned Sessions Judge rejected the revision.

4. Learned Counsel for the applicant submitted before me that the act of the Magistrate in taking cognizance of the charge-sheet was wrong on two counts, firstly he submitted that report submitted under the Electricity Act completely exonerated the present applicant and secondly, there was bar of Section 56 of the Indian Electricity Act. Learned APP for the respondent on the other hand submitted that the Electric Inspector has also in his report not disputed the fact that at the relevant time the electric supply on the said line was not disconnected. He submitted that what is observed by the Electric Inspector is that Subhash himself had not taken proper care while carrying out the job. The question as to whether the proper care was or was not taken and whether it was only due to sheer negligence of the present applicant has to be decided on merits. The fact remains that as reported by complainant while submitting the F.I.R. the supply of 11 KV line was not disconnected and was in fact on. It is, therefore, obvious that when the deceased had climbed the pole electric suply on the said line was certainly not disconnected. The learned counsel for the State submitted that the omission on the part of the present applicant-petitioner in not disconnecting the supply itself is an act of negligence. He submitted that whenever any public servant omits acts to do any particular act he is not entitled for protection under Section 197, Criminal Procedure Code or Section 56 of the Indian Electricity Act. Section 56 of the Indian Electricity Act definitely bars taking cognizance of an offence which is committed during discharge of the duties. It prohibits taking cognizance of an offence during discharge of the duties but when the officer omits to do a particular thing it cannot be said that he was acting in discharge of his duty. Such an omission certainly amounts to negligence and whenever any officer commits an act of negligence no protection under Section 56 of the Indian Electricity Act can be afforded to him. In the circumstances I find that there could be no bar under Section 56 of the Electricity Act, learned Sessions Judge did not commit any error in rejecting the revision. Application under Section 482 therefore stands rejected.

5. Observations of this Court shall not come in the way of Magistrate dealing with the case. He may arrive at his own conclusion.

Application rejected.