CHANDER SHEKHAR SAXENA vs STATE OF NCT OF DELHI & ANR.

$~16, 17 & 18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision:7th March, 2025
+ CRL.M.C. 657/2021, CRL.M.A. 3197/2021 (stay)
BHARAT HEAVY ELECTRICALS LIMITED
Through its Authorised Representative
Sh. Koushik Acharya …..Petitioner
Through: Counsel for Petitioner (appearance
not given)

versus

1. STATE
Through Standing Counsel (Criminal) …..Respondent No.1

2. SH. P.K. THAKAR
Deputy General Manager (I/C) IPC …..Respondent No. 2
Through: Mr. Ajay Vikram Singh, APP for
the State.
Mr. Tariq Farooqi, Advocate for
R2.

17
+ CRL.M.C. 658/2021, CRL.M.A. 3199/2021 (stay)
SH. S. CHANDAR
S/o Sh. V.R. Subramaniam …..Petitioner
Through: Counsel for Petitioner (appearance not given)

versus

1. STATE
Through Standing Counsel (Criminal) …..Respondent No.1

2. SH. P.K. THAKAR
Deputy General Manager (I/C) IPC …..Respondent No. 2
Through: Mr. Ajay Vikram Singh, APP for the State.
Mr. Tariq Farooqi, Advocate for R2.
18
+ CRL.M.C. 3007/2022, CRL.M.A. 12663/2022 (stay)
CHANDER SHEKHAR SAXENA
S/o Late Sh. R.K. Dundha …..Petitioner
Through: Mr. Rajat Bhardwaj, Ms. Ankita M Bhardwaj, Mr. Kaustubh Khanna and Mr. Saurav Kakroda, Advocates.

versus

1. STATE OF NCT OF DELHI
Through its Standing Counsel (Criminal) …..Respondent No.1

2. SH. P.K. THAPAR
Deputy General Manager (I/C) IPC
Indraprastha Power Generation Co. Ltd. ….Respondent No.2
Through: Mr. Ajay Vikram Singh, APP for the
State.
Mr. Tariq Farooqi, Advocate for R2.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
1. The aforesaid three Petitions under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘CrPC’) has been filed on behalf of the Petitioners namely, Bharat Heavy Electrical Limited (BHEL), Mr. S. Chandar, Deputy General Manager of BHEL and Mr. Chander Shekhar Saxena, Director of M/s Durha Components, to challenge the impugned Summoning Order dated 09.02.2021, of the Special Court, Electricity Act, Delhi whereby the delay of about 7½ years in filing the Charge-Sheet under Section 139 of the Electricity Act, 2003 in FIR No. 390/2005 dated 24.08.2005, has been condoned and cognizance was taken of offences under Section 139 of the Electricity Act and Section 336 of IPC.
2. It is submitted that the Indraprastha Power Generation Co. Ltd. (IPGCL), a Government of Delhi undertaking, is engaged in generation and transmission of electricity. The said production of electricity is done at its Thermal Power Station situated at Indraprastha Estate, Ring Road, New Delhi.
3. On 22.07.2003, IPGCL awarded a Tender to BHEL with respect of the design, manufacture, supply, erection, commissioning, performance, testing and handing over on turn key basis ‘Electro Static Precipitator’ systems (for short ‘ESP’), meant for collecting residual Ash in Power Generation Unit Nos. 2, 3, 4 & 5.
4. BHEL sub-contracted the work for erection (including civil and electrical work), Testing, Commissioning and handed over of ESP at Power Generation Unit Nos. 2, 3, 4 and 5 to M/s Durha Components Pvt. Ltd. The actual execution of work was thus, done by M/s Durha Components.
5. BHEL had also sub-contracted installation of valves for trapping residual Ash to M/s Energo.
6. During the commissioning and testing of the ESPs, BHEL’s site In-charge vide his Letter dated 21.07.2005 informed IPGCLthat due to non-availability of HP water and vacuum producers of rated performance, there is unwanted build-up of Ash inside the ESPs of Unit Nos. 3, 4 and 5 and the same may lead to damage to the Apparatus. IPGCL was advised by BHEL, to take remedial measures.
7. On 24.08.2005, while ESP of Power Generation Unit No. 3 was under commissioning and undergoing Performance Tests, it collapsed leading to the spilling of Ash contained in it.
8. On the complaint of Deputy General Manager, IPGCL, FIR No. 390/2005 dated 24.08.2005 under Section 426/336 of IPC, Section 3(2)(a) of Damage of Public Property Act, Section 139 of the Electricity Act at P.S. IP Estate was registered.
9. It is a matter of record that IPGCL never initiated any Civil Claim either for damages or for recovery of money from BHEL. Remedial measures were taken by BHEL at its own cost and the Unit was again erected.
10. The Government of NCT of Delhi ordered constitution of an Enquiry Committee under the aegis of the Central Electricity Authority, for investigation and determination of causes for collapse of said ESP unit. The Committee submitted its Report on 14.10.2005, wherein it highlighted that the actual work was sub-contracted to M/s Durha Components and M/s Energo. However, the Report did not contain any finding w.r.t. any negligent or rash conduct of BHEL.
11. Another enquiry into the incident and its causes, was conducted by Welding Research Institute, Tiruchirapalli, Tamil Nadu and the Report dated nil was submitted, wherein it was opined that the cause of ESP collapse was not poor welding, but excessive weight of the residual Ash.
12. The investigations, however, lingered on despite two opposing Reports by Technical Experts.
13. The last set of documents were received by the Investigating Officer on 27.02.2009, despite which the Charge-Sheet was not prepared till 18.08.2013, and that too, only under Section 139 of the Electricity Act, 2003. Thereafter, the matter remained pending before the learned Metropolitan Magistrate from 05.12.2013 to 23.09.2019 on account of non-appearance of the Investigating Officer.
14. It is further submitted that the Charge-Sheet was accompanied with an Application under Section 473 CrPC for condonation of delay, essentially on the ground that many Investigating Officers were changed during the investigation. However, no explanation was given to explain the period between 27.02.2009 to 18.08.2013 during which period nothing was done.
15. The learned Trial Court allowed the Application under Section 473 of CrPC and condoned the delay of about 7½ years and summoned the named accused persons under Section 139 of the Electricity Act and Section 336 of IPC vide separate Order dated 09.02.2021.
16. The main grievance of the Petitioner in challenging the Ordercondoning the delay is that the Application under Section 473 of CrPC was served upon BHEL on 27.11.2019, i.e. after much delay.
17. The Trial Court has failed to adhere to the guidelines laid down by the Hon’ble Supreme Court of India in the matter of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 SCC 649 wherein it was observed that an Application for condonation of delay should be drafted with careful concern and not in a haphazard manner, harbouring the notion that the Courts would condone the delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
18. Reliance has also been placed on Postmaster General vs. Living Media India Ltd., (2012) 3 SCC 563 wherein it has been observed that in a matter of condonation of delay, where there is no gross negligence or deliberate inaction or lack of bona fides demonstrated, a liberal concession must be adopted to advance substantial justice. However, the law of Limitation applies equally to the Government Department, who claim such concession on account of impersonal machinery and inherited bureaucratic methodology of making several notes.
19. Considering that there is a huge delay of nearly 14 years from the date of the incident to the date on which the cognizance of offences was taken, such belated prosecution must be nipped in the bud. Therefore, the prayer is made that the Order of Summoning dated 09.02.2021, be quashed.
20. Further, it is asserted that none of the essential ingredients of either Section 139 of the Electricity Act, 2003 or Section 336 IPC, were made out and there was no prima facie case to issue the summons. The Statements under Section 161 of CrPC of the witnesses, have been misread and misconstrued as none of them stated that mishap happened due to negligence of BHEL. The summoning Order dated 09.02.2021 is bad in law and liable to be set aside on this account as well.
21. Moreover, there are two Technical Reports giving an opposite view. It is a settled proposition of law that if there are two views equally possible, then the view favouring the accused must be adopted. Furthermore, none of the Enquiry Reports contained the finding that BHEL was negligent or rash in its conduct of business. This assumes importance as Investigating Agency has not conducted any scientific investigation into the incident and has simply relied on the Enquiry Committee Reports. A patent error of law has been committed in presumption to impute mens rea to the Petitioner Company/BHEL which had the responsibility of carrying out of works in furtherance of Tender awarded to it.
22. Reliance has been placed on Sunil Bharti Mittal vs. CBI, AIR 2015 SC 923 wherein it was observed that the summons be issued only if the Magistrate is satisfied that there is a sufficient ground for proceeding with the trial.
23. A Status Report has been filed by the State specifying details of the incident. It is submitted that impugned Order dated 09.02.2021, of the learned Special Judge isa well-reasoned speaking Order, and the delay has been condoned after considering all the facts of the incident. The learned Trial Court correctly took Cognizance of the offence under Section 139 of the Electricity Act, 2003 and Section 336 IPC and summoned the accused persons/Petitioners.
24. Therefore, the present Petition filed by the accused challenging the Order dated 09.02.2021, is without merit and is liable to be dismissed.
25. Respondent No.2/IPGCL in its Counter-Affidavit has submitted that the impugned Order is rightly passed and the Petition is liable to be dismissed, as the Petitioner has no legal relationship with IPGCL. The alleged Sub-Contract dated 26.08.2004 was entered into between BHEL and M/s Durha Componentsfor which no permission was sought from IPGCL Moreover, IPGCL Sub-Contract has no relevance or connection with it.
26. BHEL is the main accused, as they were In-Charge at the site. The incident occurred in the presence of the site In-Charge, making BHEL fully liable for prosecution for the cause and loss arising from the incident.
27. The present Petition is not maintainable, as the Petitioner has not challenged the Orderdated 09.02.2021, framing of Charges under Section 139 read with Section 150 Electricity Act, and under Section 336 IPC. It is thus, asserted that the Petition is liable to be dismissed.
28. Submissions heard and record perused.
29. The Order dated 09.02.2021 is challenged on two accounts: firstly, allowing the Application under Section 473 CrPC for condonation of delay of about 7½ years in filing of the Charge-Sheet; and secondly, the cognizance taken under Section 139 Electricity Act and Section 336 IPC.
30. The main aspect for consideration is whether there existed cogent reasons for the condonation of delay of about 7½ years in filing the Charge Sheet on 18.08.2013.
31. Chapter XXXVI CrPC, 1973 dealing with the limitation for taking Cognizance of certain offences, had been inserted to make the prosecution of complaints a quick process and consequently make the criminal justice system more orderly, efficient and just. The main objective in putting a bar of Limitation in the light of Article 21 of the Constitution, was to prevent the parties from filing a case after a long time, which many a time, results in the disappearance of material evidence and filing of vexatious and belated prosecutions long after the date of the offence.Though this Chapter is a part of the procedural law, but it is well settled that the procedural law must not be used as a tool to deny the justice to the parties.
32. Here, it is pertinent to refer to Section 468 of CrPC which reads a under:-
Section 468. Bar to taking cognizance after lapse of the period of limitation.
(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be –
(a) six months, of the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, of the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
(3) For the purposes of this Section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the mere severe punishment or, as the case may be, the most severe punishment.

33. The main contention raised on behalf of the Respondent to justify that the Charge-Sheet was filed within the limitation period, is that the limitation would be calculated in relation to offences under which the FIR had been registered and not the offences under which the Charge-Sheet eventually gets filed. Sub-Clause 3 of Section 468 Cr.P.C. provides that the limitation shall be determined with reference to the offence, which is punishable with the most severe punishment.
34. It has been argued on behalf of the Respondents that the FIR was registered under Section 427 IPC, which is punishable with a maximum sentence of two years and Section 3(2)(a) of Damage to Public Property Act, which is punishable by a maximum sentence of five years. Therefore, there is no limitation for filing the Charge-Sheet.
35. For this proposition, reference be made to the case of State of H.P. vs. Tara Dutt, (2000) 1 SCC 230 wherein the Apex Court observed that the language of sub-section (3) of Section 468 CrPC makes it imperative that the limitation provided for taking cognizance in Section 468 is in respect of theoffence chargedand not in respect of offence finally proved.
36. From the aforesaid Sections and proposition as explained in the case of Tara Dutt (supra), it is abundantly explicit that it is the offences under which the Charge-Sheet is filed, in reference to which the period of limitation has to be ascertained. The FIR may be registered under various Sections, but it is only those Sections under which the offences are established in the Charge-Sheet, under which the accused can be charged, that are significant for the purpose of calculation of limitation. Therefore, what is significant for the purpose of calculating the limitation is not the offences under which the FIR is registered, but the offences under which the Charge-Sheet is filed.
37. The FIR may have been registered under Section 427 IPC, which is punishable with a maximum sentence of two years and Section 3(2)(a) of Damage to Public Property Act, however, the Charge-Sheet has been filed only under Section 139 of the Electricity Act, 2003, which is punishable with a maximum sentence of only fine, which may extend to Rs.10,000/- as well as the offence under Section 336 of the IPC, which is punishable with imprisonment of either description, which may extend to three months or with fine which may extend to two hundred and fifty rupees, or with both. Since the punishment for both the offences under which Charge-Sheet is filed, was for a term not exceeding one year, the period of limitation is one year, as per Section 468(2)(b) of CrPC.
38. In the light of aforesaid discussion, clearly the Charge-Sheet, having been filed on 18.08.2013 for an incident of 24.08.2005, is clearly beyond a period of One year from the date of incident and is beyond the period of Limitation.
39. In this backdrop, what now needs to be considered iswhether there exist sufficient grounds for condonation of delay.
40. Chapter XXXVI does not undermine the right of the accused. It aims to strike a balance between the interest of the complainant and the interest of the accused. While this limitation encourages due diligence by providing for limitation, it does not intend to throw out all the prosecutions on the grounds of delay, as was observed by the Apex Court in Sarah Mathew vs. Institute of Cardio Vascular Diseases & Ors., 2014(2) SCC 62.
41. In the case of Vanka Radhamanohari vs. Vanka Vankata Reddy and Ors., (1993) 3 SCC 4, the Apex Court noted the basic difference between Section 5 of the Limitation Act and Section 473 of the Code of Criminal Procedure and observed that in order to exercise the power under Section 5 of the Limitation Act, the onus is on the Applicant to satisfy the Court that there was sufficient cause for condonation of delay, whereas Section 473 enjoins a duty on the Court to examine not only whether such delay has been explained, but as to whether it is the requirement of justice to ignore such delay.
42. It can be thus, inferred that Section 473 Cr.P.C. provides for twin test for condonation of Delay and taking cognizance after the expiry of the period of limitation; firstly, the satisfaction on the facts and in the circumstances of the case that the delay has been properly explained and secondly, that it is necessary to do so in the interest of justice. 
43. In the present case, the FIR was registered on 24.08.2005. However, the Charge-Sheet under Section 139 of the Electricity Act, 2003 and Section 336 of IPC has been filed only on 18.08.2013 i.e. after about eight years, when it should have been filed within a period of one year i.e. upto 24.08.2006 in terms of Section 468 CrPC.
44. The Application for condonation of Delay was allowed by learned Special Judge on 09.02.2021, i.e. after a period of about 7½ years of filing the Charge-Sheet and cognizance onthe Charge-Sheet under Section 139 and Section 336 of IPC, was taken on the same date.
45. The explanation for delay as stated in the Application was that the investigations in the case related to Technical and Engineering aspects. Further, due to various Departmental and Company enquiries, the delay of 7 years was caused, for which condonation was sought.
46. Learned Special Judge observed in the impugned Order that the incident occurred in the premises of a Government Undertaking, wherein work for installation of ESP in all the five Units was awarded to BHEL, a Public Sector Undertaking. It was further observed that it is common knowledge that it is difficult, at times, to collect the documents from the Government Offices/ Departments in view of the cumbersome procedure. Further, it is also time consuming to examine concerned Officials of a Government Undertaking in order to find out the root cause of the incident and to fix the responsibility.
47. The matter required technical investigations and facts in regard to technical and engineering aspects of which the Investigating Agency was dependent upon the said Enquiry Reports.Furthermore, two Enquiry Reports were obtained. The Enquiry Report of Central Electricity Authority dated 28.09.2005, has given an observation that Ash evacuation system was not working satisfactorily.
48. There were also frequent transfers of Investigating Officers during the course of investigations since 2005 till 2013. Furthermore, the Complainant had not been negligent as he made the Complaint of the incident immediately on the same day i.e. 24.08.2005.
49. Furthermore, the incident of collapse of newly installed ESPs of Power Generating Plant resulted in reduction of about 80 Megawatts of power generation as stated in the Complaint dated 24.08.2005, which affected large number of population of the relevant areas of Delhi, which were being supplied with electricity through the said two Units.
50. Thus, considering the aforesaid circumstances and also that the Complainant cannot be faulted for delay in the investigations by the Investigating Agency, the delay of more than seven years in filing the Charge-Sheet, has been condoned by the learned Special Judge.
51. The first aspect of significance is that in order to ascertain the reason to collapse of Unit No.3 meant to arrest Ash, Enquiry Report were obtained from two Agencies, namely, the Central Electrical Authority, dated 28.09.2005 which submitted its Report to the IO on 20.02.2006 and the second Enquiry Report by Welding Research Institute, BHEL, Tiruchirapalli, Tamil Nadu dated nil, which was received by the IO on 01.06.2006.
52. Interestingly, the first Enquiry Report of Central Electrical Authority dated 28.09.2005 mentioned that though the evacuation system was not working satisfactorily, however, the system had been put in operation without proper commissioning of Ash Evacuation System. Moreover, commissioning/handing over Protocol had not been followed. As the Ash level in the hopper attains a certain high level, the operator is alarmed about the high level condition and ESP field is tripped ten minutes thereafter. Even though the ESP field was not in service, the Ash continued to build up in the hopper, the level of which could not be known to the operator. The operation of Unit was continued by BHEL personnel. The welded joints were found to be broken at several locations including at critical support locations. Some of the joints were made by inserting rods and metal pieces and shabbily patched up. Such unacceptable welding practices could have reduced the load bearing capacity resulting in structural collapse.
53. The second Enquiry Report by Welding Research Institute, BHEL, Tiruchirapalli, Tamil Nadu, dated nil gave a contrary opinion and indicated that there were no significant deviations in the materials and consumable used for welding from those specified. The metallurgical quality of weld joints made are as expected and the weld penetration is quite adequate through the weld contour. The Report clearly stated that most of the failures, both primary and secondary ones, seem to have occurred after sufficient extent of deformation in the form of bending and twisting of the base material sections adjoining the welds. The observed pattern of collapse seems to indicate that the failure could have started from column B2 (which takes the maximum axial load when hopper is filled to the designated height and overloaded when the ash level is above specified limits). The failed portion of the transverse and longitudinal bracing indicates that it is more of a consequential failure.
54. The first aspect which emerges is that the second Report clearly indicated that there was no fault in the welding points while the Report of Central Electricity Authority, was to the contrary. Pertinently, the I.O. decided to not rely on the second Report which was exculpatory and did not impute any negligence on the part of the Petitioner.
55. The second aspect is that from the Report of Central Electricity Authority, there can be no conclusion of there being any negligence for the simple reason that the said Report also mentions that without proper commissioning of Ash Evacuation System, the system could not have been put in operation. It was still at the stage of performance testing and there was no commissioning, which had been undertaken. Further, it cannot be overlooked and ignored that the Units were still in the process of rejuvenation and performance tests were being carried out. The power generation Unit No. 3, which had collapsed, was under commissioning and undergoing performance tests. There was no handing over or done of Unit No. 3 and the protocols mentioned in the Report, could have been followed only at the time of handing over and not at the time of testing.
56. Though the investigations entailed Expert evidence and Reports were obtained from two Agencies, but what is significant is that the two Reports became available by June, 2006 i.e. in about ten months of the date of incident. But there was stoic silence maintained by the Investigating Agency despite having received the Enquiry Reports in 2006. The record does not reflect any further investigations undertaken by the Investigating Officer.
57. The record further reflects that the last set of documents were received by the Investigating Officer on 27.02.2009, even thereafter the Charge-Sheet had not been prepared till 18.08.2013 i.e. for almost four years.
58. While as discussed above, some leniency may be shown to the Government Agency, considering its bureaucratic complexities, but in this case, even that does not seem to be the reason. Pertinently, the two Enquiry Reports gave contrary views, which could have been the reason for indecision and consequent delay in the part of the Investigating Agency. Be as it may, no explanation absolutely is forthcoming to explain this delay from June, 2016, from which the only conclusion that can be drawn is that there was absolute indifference or the Investigating Agency found no substance or seriousness in filing the Charge-Sheet.
59. The second reason given by the prosecution for delay is that there was frequent change of Investigating Officers. This explanation not only points out that there was no seriousness in filing of Charge-Sheet, but is also a glaring example of shifting the burden of taking decision on others, by the government Agency.
60. While the Court may be liberal while considering the delay on the part of a Government Agency, but this does not imply an automatic assumption of condonation under all circumstances. While some leverage may be given when it is a Government machinery and multi-level approvals are mandatorily required which may take a little longer, but blatant indifference with no cogent explanation, would definitely not enure benefit to the Government. There is no explanation whatsoever, what to talk of cogent explanation, forthcoming for this inordinate delay of more than seven years in filing the Charge Sheet and there exists no ground for condonation of delay.
61. The next aspect which merits deliberation is whether it resulted in any public harm and whether it is in the interest of justice that the delay be condoned.
62. In the case of Vanka Radhamanohari (supra), the Apex Court had noted that it is not the quantum of sentence, which would determine the seriousness of the offence. Reference was made to certain offences such as Section 384 or 465 of IPC which have lesser punishment but were observed to have serious social consequences, which is a relevant factor for consideration while considering the condonation Application.
63. The learned Special Judge observed that because of the collapse of Unit No. 3, there was“public harm”caused as a large number of areas may have been deprived of supply of electricity.
64. It is absolutely an incorrect appreciation of facts, as the Unit was still in the process of repairs, Commissioning and undergoing Performance Tests. It is nowhere asserted in the entire Charge-Sheet that the collapse of this Unit resulted in disruption of generation or supply of electricity to a section of public. The learned Special Judge, therefore, erred in making such observations merely on the basis of the averments made in the Complaint by Respondent No.2/Sh. P.K. Thapar, Deputy General Manager (Incharge) of IPGCL without there being any basis in the Charge-Sheet.
65. Pertinently, the ageing Power Station was in the process of rejuvenation and BHEL was in the process of installing and Commissioning of ESPs on all running Units, it collapsed leading to the spilling of ash contained in it. There was no person hurt in the incident. No Civil litigation by any of the parties got initiated. The repair/reconstruction of the collapsed Unit was done by BHEL at its own expense, as the Unit was still under commissioning.
66. In the totality of the aforesaid circumstances, it is neither expedient or in the interest of justice to drag a trial for an offence punishable with maximum 3 month imprisonment under Section 336 of IPC, and Rs.10,000/-fine only under Section 139 Electricity Act, especially when no Public harm is shown to have been caused in the Chargesheet.
Conclusion:
67. The condonation Application did not disclose any cogent explanation for delay of about eight years in filing the Charge-Sheet. Also, in the given circumstances it is not even in the interest of justice, to condone the delay. Consequently, impugned Order dated 09.02.2021 allowing the Application under Section 473 CrPC for condoning the delay, is hereby set-aside.
68. Accordingly, Charge-Sheet filed under Section 139 of the Electricity Act, 2003 in the FIR No.390/2005 dated 24.08.2005 Police Station I.P. Estate, along with all the proceedings emanating therefrom including the Order of taking Cognizance and summoning Order dated 09.02.2021, is hereby quashed, being barred by limitation.
69. The Petition is allowed and disposed of accordingly, along with pending Application(s), if any.

(NEENA BANSAL KRISHNA)
JUDGE
MARCH 7, 2025/RS

CRL.M.C. 657/2021 & connected matters Page 1 of 18