1. A complaint under Sections 426, 430 of the Penal Code and under Sections 45 and 48(4) of the Delhi Rent Control Act, 1958, was filed on 24th August, 1974, in the court of Magistrate by S. Vershaswami against his landlord P. S. Sundram, petitioner herein, on the allegation that the accused had cut off the supply of electricity and water in the tenanted premises on 5th June, 1974.
2. After recording preliminary evidence under S. 202 of the Criminal P.C. of the complainant, who appeared as PW 1, and three other wittiness on his behalf, the learned Magistrate vide his order dated 15th March, 1975, summoned the accused petitioner herein for an offence under S. 426 I.P.C. only. It was noticed in that order that the complainant did not press for the summoning of the accused under S. 430, I.P.C. and S. 45 of the D.R.C. Act.
3. The case of the complainant is that he was a tenant under the petitioner herein in the first floor of house No. C-25, South Extension Part I. New Delhi, since September 1969 on a monthly rent of Rs. 240/-. The ground floor of that house was in the occupation of the landlord; that the landlord was bent upon in having the tenanted premises vacated; for that purpose he had not only filed eviction petitions against the complainant but had also been indulging in unlawful acts of harassing, humiliating and coercing the complainant in vacating the premises in question. The complaint was primarily based on the allegations contained in a paras 5 to 12 of the complaint which paras read as under :-
'(5) That as part of such unlawful acts, the Supreme Court with the connivance and support of his son, has off and on been withholding/cutting off/diminishing essential supplies of electricity and water. With a view of enabling him to commit the mischief and evade detection thereof, the accused had got removed the electricity distribution board of first floor which was hitherto in the first floor staircase itself and got it installed under the staircase in ground floor on the wall of toilet of back portion. He has taken lead from behind the distribution board into his toiled and has installed control switches for electricity (light and fans). For water he has got installed in that toiled a stopcock by use of which he has been diminishing water supply and had also cut it off since 5th June, 1974. He had meddled with the power supply and had locked up the meter box situated under the staircase of ground floor.
(6) That from 5th June, 1974, the accused had totally cut off electricity (light and fan), domestic power and water to the tenanted premises.
(7) that on 6th June, 1974, the complainant filed a petition in the Court of the Rent Controlled for restoration of essential supplies under Section 45 of the D.R.C. Act, 1958.
(8) that on 7th June, 1974, on an application moved by the complainant the Hon'ble Court of Shri V. S. Aggarwal. Additional Rent Controller, Delhi, was pleased to appoint a local Commissioner Shri Vijay Kumar Behl, Advocate, to inspect the tenanted premises to find out whether electricity and water was cut off to the tenanted premises and if so to find out from where it was cut off.
(9) that the local Commissioner visited the premises in the evening of the same day and found that electricity (light and fan) was cut off to the bedroom, kitchen and verandah and domestic power and water were cut off for the entire premises which fact was also shown to the accused.
(10) that the local Commissioner contacted the accused, showed the order of the court and asked him to allow access to find out from where the essential supplies were being withheld. The accused at first refused on the plea that he should have been given at least 24 hours notice according to D.R.C. Act but later hesitatingly allowed the local Commissioner access to ground floor.
(11) that after inspecting the kitchen and one toilet of ground floor, the local Commissioner wanted to inspect the other toilet where the devices for withholding/cutting off/diminishing essential supplies were illegally installed but he was prevented by the accused from inspecting that toiled.
(12) that the order of the honorable Court of Shri V. S. Aggarwal directing the accused to restore the essential supplies of water and electricity was duly serve on the accused on 8th June, 1974. But in spite of this. The accused has contumaciously been withholding electricity (light and fan) to bedroom, kitchen and verandah and power to the whole premises. He restored electricity to bedroom and power to the whole tenanted premises only on 1st July 1974. He has not so far restored electricity to kitchen and verandah. In spite of the order, he has been diminishing water supply by 50 per cent and had completely cut it off on 16th, 17th, 18th, 20th & 21st June, 1974. He has not so far restored water supply for latrine by using a stopcock in the connection from second floor tank. The accused has been/is committing these unlawful acts in connivance with and active support of his son.'
4. From the above-quoted allegations in the complaint and the preliminary evidence recorded prima facie it appears that from the distribution board through which electricity was supplied to this first floor of the premises, the landlord petitioner herein has illegally got a connection installed by taking a lead from it is a bathroom on the ground floor in his exclusive possession where he had put a control-switch whereby he could cut off the supply of the electricity to the first floor any time he liked. For withholding of or diminishing the water supply the landlord had installed in that toilet a stopcock by operation of which he could diminish or control the water supply to the tenanted premises.
5. Para 8 of the complaint shows that a local Commissioner Shri Vijay Kumar Behl, Advocate was appointed by the Courts of the Rent Controller to verify the allegations made before that Court. According to his report he found the allegations to be correct. thereforee the Rent Controller had directed the restoration of the electric and water connections. The offence regarding withholding or cutting of the supply of water falls within the purview of Section 430 of the I.P.C. The complainant not having pressed that allegation at the time of arguments the accused was not summoned for that offence.
In pursuance of the summons, the accused appeared before the Court on 2nd January 1976, and was admitted to bail. For one reason or the other, there has been no progress in the case since then except for issuance of a notice under Section 251 of the Criminal P.C. However the petitioner moved an application on 8th May, 1979 seeking dismissal of the complaint against him as the application moved by the complainant before the Rent Controller under the R.C. Act, had been dismissed vide order passed on affirmed by the Rent Controller Tribunal as well as by the High Court in a second appeal, the present complaint based on those very allegations deserves dismissal. In para 5 of the application it had been averred that in any case no offence was committed by the accused-petitioner.
6. While dismissing that application the trial Court has held that the cause of action of the complaint was different from the one which was the subject-matter of the application before the Rent Controller. In that application the grievance was that the supply of electricity had been disconnected from 31st December 1974, whereas in the present complaint the allegation was that it had been cut off from June 5, 1974. The plea of the accused that no offence had been made out has been noticed in that order but the Magistrate has not dealt with the same. Thereafter, the petitioner herein filed a revision petition against that order of the Magistrate The learned Additional Sessions Judge was of the view that dismissal of the application filed by the complainant in the Court of the Rent Controller did not bar the filing of the present complaint. It was further held that application seeking dismissal of the complaint was misconceived as it had been filed after about four years of the order of summoning : that order not having been challenged the accused could not by means of an interlocutory application seek dismissal of the complain on merits. The learned Additional Sessions Judge also has not discussed whether in fact that the complaint and offence under S. 426 of the I.P.C. Most probably, this plea taken in the grounds of revision was not urged before her and that is why there is no discussion on it.
7. In this petition under S. 482 of the Criminal P.C. it is submitted that assuming without admitting that all the facts pleaded in the complaint to be correct no offence is made out under S. 426 of the I.P.C. The proceedings pending in the trial Court it is urged are thus liable to be quashed. The complaint in support of the allegations urged in the complaint relied on the report of the local Commissioner which was filed in the Court of the Rent Controller. A copy of that report was filed by the petitioner herein along with the application seeking discharge in the trial Court.
8. The contention of Mr. D. C. Mathur, learned counsel for the petitioner is that the mere disconnection of electric supply does not amount to destruction of property as envisaged under S. 425 of the I.P.C. which reads as follows :
'425. Mischief - Whoever with intent to cause or knowing that he is likely to causes, wrongful loss or damage to the public or to any person causes the destruction of any property, or any such change in any property, or any such change in any property or in the diminishes its value or utility, or affects it injuriously, commits 'mischief'.
Explanation I. - It is not essential to the offence of mischief that the offender should intent to cause loss or damage to the owner of the property injured order destroyed. It is sufficient if he intends to cause or knows that he is likely to cause wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.
Explanation 2. Mischief may be committed by an act affecting property belonging to the person who commits the act or that person and others jointly.'
9. In support of his contention Mr. Mathur submits that electricity is 'energy' and as such cannot be termed as 'movable property'. He is right to that extent. But his contention that by switching off the supply of that energy which is not property the act complained of does not amount to mischief as envisaged under S. 425 of the I.P.C. is entirely misconceived. His reliance on I. H. Khan v. V. M. Arathoon, , is also misplaced. That case is distinguishable on its own facts. In that case the landlord after revoking the license of the complainant who was a licensee in respect of a garage, had stopped the supply of electricity to that garage by switching off the current. It was observed by T. P. Mukherji, J. (at P. 243) :
'This stoppage of supply of electric current in the circumstances of this case, would not in my view, amount to mischief as contemplated in Section 425 I.P.C.'
Apparently, after revocation of the license, the complainant was not entitled to receive the electric current and the landlord had no duty cast upon him to supply it.
10. The grievance in the present case amounts to be allegation that by switching off the electric current there has been a destruction of the property in occupation of the complaint inasmuch as that act brings about such a change in the premises in occupation of the complainant which diminishes its utility or value. Obviously if electricity is switched off, as is being complained in this case, it diminishes the value and the utility of the tenanted premises as envisaged by S. 425 of the I.P.C. In my view, it is not necessary to prove that in fact the accused had caused any damage to the distribution board or that wires supplying electric current from that board to the tenanted premises had been cut or destroyed 'Property' contemplated in S. 425 of the I.P.C. is the property whose value of utility has been diminished or it has been diminished or it has been destroyed.
11. In view of my above discussion this petition fails and is hereby dismissed. Any observation made by me in the above order will not be construed to be findings of the fact. These observations have been made merely to asses the legal propositions canvassed on behalf of the petitioner.
12. Petition dismissed.