The Bihar State Electricity Board, Bidhyut Bhavan, Bailey Road v. Patna, through its Secretary
Case Details
Patna High Court Cr.Misc. No.25235 of 2012 (3) dt.08-10-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.25235 of 2012 ====================================================== Abhishek Bachan, son of Krishna Kumar Bhagat, resident of Mohalla- Maharajganj, Post Office- Jamui, Police Station and District- Jamui. .... .... Petitioner. 1. The State of Bihar. 2. The Bihar State Electricity Board, Bidhyut Bhavan, Bailey Road, Versus Patna, through its Secretary. 3. Shri Pradip Kumar, Assistant Electrical Engineer, Jamui Sub- Division, Jamui. .... .... Opposite Parties. ====================================================== Appearance : For the Petitioner : Mr. Sanjay Kumar Verma, Advocate. Mr. Bijay Bihari Sinha, Advocate. For the State : Mr. Anand Kishore Choudhary, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 3 08-10-2013 Heard. 2. This is a petition for quashing the First Information Report bearing Jamui Police Station Case No. 388 of 2011 for offence under Section 135 of the Electricity Act and Section 379 of the Indian Penal Code. 3. The prosecution case in the First Information Report by the Assistant Electrical Engineer alleging therein that in pursuance of the order of District Magistrate, Jamui, vide Memo No. 1273, dated 09. 11. 2011, a raid was conducted with regard to theft of electricity and it was found that Abhishek Bachan, was premises committing theft of 1 K.W. electric load and tapping electricity by
Legal Reasoning
Patna High Court Cr.Misc. No.25235 of 2012 (3) dt.08-10-2013 wire (Toka) in jewellery shop M/S Bachan Jelleries. It was found that connection of the house of Abhishek Bachan was disconnected for non-payment of arrears of electricity bill of his domestic connection. Theft has been assessed loss to Electricity Department worth Rs. 36,161/- and taking the arrears it comes to Rs. 70,471/-. It has also mentioned other persons found committing theft includes one Awadhesh Kumar Mandal and Karyanand Kishore committing theft of electricity in wheat mill premises. However, common seizure list has also been prepared of electric wire which was used for tapping electricity. On the written report of Assistant Electrical Engineer, F.I.R. was lodged for offence under Section 135 of the Electricity Act and Section 379 of the Indian Penal Code.
Legal Reasoning
4. Learned counsel for the petitioner has filed a petition for quashing the F.I.R. on the ground that Section 151 of the Electricity Act provides that under the Electricity Act, cognizance of offence can only be taken upon the complaint filed in writing by an authorised officer. It is submitted that cognizance of offence can only be taken if the complaint is made in writing by the authorised officer under the Code and there is no provision in the Act for registration of F.I.R. hence if police filed a report after Patna High Court Cr.Misc. No.25235 of 2012 (3) dt.08-10-2013 investigation on the F.I.R. under Section 173 of Cr.P.C. cognizance could not be taken as under the Electricity Act the only remedy available under the Act to entertain a complaint of authorised officer and so registration of F.I.R. is not permissible in law. It has further been contended that offence under Section 379 of Indian Penal Code is not applicable for the theft of electricity as theft of electricity is for movable property and electricity is not movable property. Further, when there is special enactment for punishment of theft of electricity under Section 135 of Electricity Act i.e. when special act is there for preventing for theft of electricity then general Act for theft under Section 379 of Indian Penal Code is not applicable. It has further been contended that, though, the electric wire alleged to be seized from the premises of petitioner for tapping electricity but seizure list has not been prepared separately but has prepared common seizure list of the seizure of articles of other person who were found tapping electricity by electric wire. It has further been contended that no offence under Section 135 of Electricity Act is made out but is covered under Section 126 of the Electricity Act as the authority concern has assessed the amount of loss of electricity and provisional assessment has been made for the loss of Patna High Court Cr.Misc. No.25235 of 2012 (3) dt.08-10-2013 electricity which can only cover under Section 126 (2) of Electricity Act, 2003. Hence it is contended that once department has chosen for provisional assessment under Section 126 of the Electricity Act, a proceeding under Section 135 of Electricity Act is not permissible. It has further been contended that Clause 2 of Schedule 1 of Cr.P.C. shall not be applicable in the Electricity Act to hold that the police has got right to investigate the case after lodging F.I.R. by police. 5. Taking into consideration the submission of the learned counsel for the petitioner, question raised is whether Section 151 of Electricity Act provides that no F.I.R. can be lodged when act alleged punishable under Section 135 of Electricity Act the Act upon the complaint made by the appropriate authority. The point raised in decision reported in 2007 Cr.L.J. (429), where it has been held that no prosecution under Section 135 of the Electricity Act would be launched except upon the complaint filed by the authorised officer. It has further been held that no cognizance can be taken on the F.I.R. registered by the police and only remedy is to file complaint, by the authority concern, before Judicial Magistrate and the Court could not take cognizance except upon complaint filed by the competent Patna High Court Cr.Misc. No.25235 of 2012 (3) dt.08-10-2013 authority hence taking cognizance by the Court on charge sheet filed on the F.I.R. lodged by police was bad in law. Hence held that registration of F.I.R. is only abuse of process of the court. Accordingly in that case reported in 2007 Cr.L.J. it has been held that F.I.R. for offence under Section 135 and 138 of the Electricity Act shall be quashed. Similar view has taken under decision reported in 2009(3) PLJR page 767, it has been held that prosecution for theft of electricity was required to be lodged on a complaint under the Electricity Act 2003 and hence no police case is maintainable. So F.I.R. in the instant case cannot be sustained and F.I.R. consequently quashed. 6. However, the decision reported in 2009(3) PLJR 767 was challenged before Supreme Court and the Supreme Court in its decision reported in 2012 (1) PLJR (SC) 476 quoted the decision reported in 2009 (3) PLJR 767. It has been held that the since the offence under Section 135 of the Electricity Act is punishable for three years. The Second part of Schedule 1 of Cr.P.C. provides that offence punishable under a Special Act for a period from three years to seven years are comes under the definition of cognizable and non-bailable offence and hence when a case comes under the definition of cognizable offence then an Patna High Court Cr.Misc. No.25235 of 2012 (3) dt.08-10-2013 F.I.R. can be lodged under Section 154 of Cr.P.C. and police has right to investigate the F.I.R. filed disclosing a cognizable offence hence lodging of F.I.R. and investigation submission of charge sheet is maintainable. 7. Hence in view of decision reported in 2012 (1) PLJR 767, there is no merit in submission that police has no jurisdiction to lodged the F.I.R. and investigate the offence. The submission is devoid of merit that the lodging F.I.R. in case for offence under Section 135 of the Electricity act is not maintainable. Hence there is no merit in the submission that prosecution under Section 135 of the Electricity act is not maintainable by lodging F.I.R. 8. Next submission made by the learned counsel for the petitioner that Section 379 of the Indian Penal Code is not applicable. However, lodging case under Section 379 of Indian Penal Code has no significance when it has been held that offence under Section 135 of the Electricity Act is cognizable and police has right to lodge F.I.R. and investigate the case. The matter would have been different if the police had no jurisdiction to lodge F.I.R. under Section 135 of the Electricity Act and to investigate the case. 9. Since submission of the learned counsel for the Patna High Court Cr.Misc. No.25235 of 2012 (3) dt.08-10-2013 petitioner that seizure list has not been prepared separately for accused person committing theft, seizure list been prepared and hence it is only an irregularity in preparing the seizure list, is no ground for quashing the F.I.R. Hence the point raised regarding seizure list is of no significance. 10. Learned counsel for the petitioner however, contends that case does not cover under Section 135 of Electricity Act as per the fact that if the assessment under Section 126 of the Electricity Act has been made, the Assistant Electrical Engineer is not liable to prosecute under Section 135 of the Electricity Act and has placed reliance in decision reported in 2013 (2) PLJR page 499 as well as 2012 (3) PLJR page 229 (paragraph 13). However in decision reported in 2012 (2) PLJR 229 (Most Swaran V. State of Bihar) distinction between Section 126 of Electricity Act and Section 135 of the Electricity Act has been made relying upon Supreme Court decision reported in 2012 (2) S.C.C case 108, where basic distinction between Section 135 and 126 of the Electricity Act has been made. It has been held that Section 126 of the Electricity Act provides for situation where unauthorised use of electricity has been done whereas Section 135 (a) to (e) of the Electricity Act provides the contingency for theft of electricity Patna High Court Cr.Misc. No.25235 of 2012 (3) dt.08-10-2013 has been made out. In decision reported in 2013 (2) PLJR 499, where it has been held complaint under Section 126 of the Electricity Act and 135 of the Electricity Act marks two event which are distinct even to different situation under Section 126 of the Electricity Act happens to be consumed of electric energy in unauthorised manner whereas theft has been defined in Section 135 (a) to (e) of the Electricity Act. 11. Section 135 (a) of the Electricity Act provides that tapping of electricity by wire over head, under ground or under water is punishable for imprisonment for three years. It has further been held that in contradiction of provision under Section 135 of Electricity Act, Section 126 of 2003 Act would be applicable to the case where there is no theft of electricity, but electricity is being consumed in violation of terms and condition of the subject leading to malpractice which squarely falls under expression of unauthorised use of electricity. Hence demarcation has been made squarely in between 126 and 135 of the Electricity Act whereas Section 135 of the Electricity Act is applicable in a case where there is theft of electricity was being committed by tapping by use of wire whereas Section 126 of Electricity Act would be applicable in unauthorised use of electricity in violation Patna High Court Cr.Misc. No.25235 of 2012 (3) dt.08-10-2013 of term and condition leading to mark. 12. However, in decision reported in 2013 (2) PLJR 499 is a case in which electricity being consumed by alleged tampering electric meter and causing loss to Electricity Department, it was held that it is not a case of theft of electricity. It is a case of unauthorised use of consume of electricity. 13. However having regard to the fact and circumstance of the present case at hand, it is alleged that theft of electricity was being committed by tapping of electricity with electric wire and further the fact that the electric connection of the house of the petitioner was disconnected as petitioner’s connection was disconnected due to dues in electric charge and the allegation of tapping of electricity by wire comes under definition of theft under Section 135(a) of the Electricity and hence the case squarely cover under Section 135 of the Electricity Act and merely because assessment has been made for the loss is no ground for holding that theft of electricity has not been committed under Section 135 of the Electricity Act. 14. Having regard to the fact and circumstance, once cognizable offence has been made out, police has got jurisdiction to investigate the case. It is entitle police to investigate the Patna High Court Cr.Misc. No.25235 of 2012 (3) dt.08-10-2013 cognizable offence when F.I.R. was lodged under Section 154 of the Cr.P.C. then police has right to investigate the case under Section 156 of Cr.P.C. This Court at this stage cannot interfere under the jurisdiction to the police. 15. Hence in this situation, I do not feel inclined to interfere with order of lodging F.I.R. Accordingly, the petition is dismissed. 16. However, order of this Court may not prejudice in the subsequent stage. m.p. (Gopal Prasad, J)