Officers Appointed To Assess Electricity Theft Are 'Public Servants', Court Can't Issue Process Against Them Without Sanction U/S 197 CrPC: Bombay HC

The petitioners nos. 1 to 3 were appointed as junior engineer and linemen respectively at the Maharashtra State Electricity Distribution Co. Ltd. (MSEDL).

The petitioners challenged the order of Sessions Court rejecting their revision against the order of the Judicial Magistrate First Class (JMFC), which issued process against them for offences under Section 323 IPC (voluntarily causing hurt) and Section 506 IPC (criminal intimidation).

The petitioners contended that JMFC was wrong in issuing process against them. They claimed that since they were public servants as defined under Section 21 IPC, the order issuing process could not have been passed against them unless prior sanction was obtained as provided under Section 197 CrPC.

On the other hand, the respondent-State contended that they were merely employees of a Board run by the government and not public servants. Thus, it claimed that sanction under Section 197 CrPC was not essential.

A single judge bench of Justice S.G. Mehare noted that under clause 12 of Section 21 IPC, the servants of a local authority or corporation established by a Central or State Act, or a government company, are considered public servants. Here, it is noted that the MSEDCL is a government-established board.

The Court then referred to Section 169 of the Electricity Act, which considers the chairperson, members, officers and other employees of the Appellate Tribunal and the chairperson, members, assessing officer and other employees of the Appropriate Commission to be 'public servants' under Section 21 IPC.

It further referred to Section 126 of the Electricity Act, which provides that the 'assessing officer' may inspect premises/machines/records to check any unauthorized electricity use.

In the present case, the Court noted that the State government appointed various officers of MSEDCL, including the junior engineer and linemen (petitioners) to detect theft under the Act. It remarked that since the junior engineer and linemen were authorized to detect and assess the theft of electricity, they can be considered as public servants under Section 169 of the Electricity Act.

“The appropriate government or the MSEB Board has authorized the Junior Engineer and linemen to find out the theft of the electricity. Since the persons who were authorized to detect the theft of the electricity and to provisionally assess the amount of theft, it can be accepted that such persons are covered under Section 169 of the Electricity Act, 2003.”

The Court held that the JMFC was incorrect in issuing process against the petitioners without a sanction. It remarked that the JMFC did not consider Section 197 CrPC in the order and that it did not reflect the application of mind.

“Therefore, the Court is of the view that the learned Judicial Magistrate First Class erred in issuing the process against the petitioners without sanction as required under Section 197 of the Criminal Procedure Code. This issue was not dealt with at all. The impugned order also does not reflect the application of mind.”

It thus quashed the order of the JMFC and the Sessions Court.

Case title: Syed Naeemuddin & ors. vs. The State of Maharashtra & anr. (CRIMINAL WRIT PETITION NO. 744 OF 2008)