Criminal Misc v. State of Haryana & Anr.

This order will dispose of four Criminal Misc. bearing No. 15719-M, 37218-M, 46567-M and 69969-M of 2005 as common question of law with similar facts are involved therein.

The prayer made in Criminal Misc. bearing Nos.15719-M of 2005 and 37218-M of 2005 filed under Section 482 of the Code of Criminal Procedure ( for short “the Code”) is for quashing of FIR No. 68 dated February 17, 2005 registered under Sections 39 of the Electricity Act and 379 IPC at Police Station, City Panipat. Criminal Misc. No. 46567-M

of 2005 is for quashing of FIR No. 487 dated August 19, 2005 registered under Sections 135, 136, 137, 138, 139 of Indian Electricity Act, 2003 at Police Station, City Karnal. Criminal Misc. No. 69969-M of 2005 is for quashing of FIR No. 751 dated December 13, 2005 registered under Sections 379 IPC and 39/50 of Electricity Act at Police Station Sadar, Gurgaon and subsequent proceedings arising therefrom.

Facts in detail have been noticed from Criminal Misc. No. 15719-M of 2005.

Briefly the facts, as stated in the petition, are that in the year 1994 a private limited company was incorporated in the name of M/s Parshva Exports Ltd. with four Directors, namely, Rattan Lal Singla, Abhay Kumar Jain, Dhanraj Jain and Mangal Sain. Rattan Lal one of the Directors had expired on June 25, 2000. In the year 2002, the name of the company was changed from M/s Parshva Exports Ltd. To M/s Mahalakshmi Cotspin Ltd. (for short “the company”) and fresh certificate of incorporation was issued. Petitioners resigned from the directorship of the company on August 10, 2004 and requisite information regarding that was furnished with the Registrar of the Company on statutory form No. 32 on August 14,

2004. With the change in name, the company became the consumer of electricity as against erstwhile company M/s Parshva Exports Ltd. It is further stated that after the petitioners had already resigned as directors of the company, they were not responsible for the affairs of the company. On Criminal Misc. No. 15719-M of 2005 -3- *** February 12, 2005, the officials of Uttari Haryana Bijli Vitran Nigam Limited ( for short “the Nigam”) visited the premises of the company for checking and on account of some alleged dishonest use of electricity FIR No. 68 dated Feburary 17, 2005 under Sections 379 IPC read with Section 39 of the Electricity Act was registered at Police Station, City Panipat against M/s Parshva Exports Ltd. and Rattan Lal Singla, Abhay Kumar Jain, Dhanraj Jain and Mangal Sain being the Directors of M/s Parshva Exports Ltd. It is this FIR, quashing of which is sought in the present petition.

Learned counsel for the petitioners has raised two fold contentions, namely, that after the enactment of the Electricity Act, 2003 ( for short “the Act”) in terms of Section 151 thereof, no Court can take cognizance of an offence punishable under the Act except upon a complaint in writing made by appropriate Government or appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electricial Inspector or licensee or the generating company as the case may be, for this purpose, which necessarily means that the FIR could not be registered. Further submission is that the provisions of the Electricity Act, 2003 will be applicable in the case, the same being a special statute as against Indian Penal Code. Still further it is submitted that petitioners already having resigned from the directorships of the company, which was sucessor of M/s Parshva Exports Ltd. could not be held responsible for any alleged act of omission and commission. Reliance has been placed on judgment of this Court in Criminal Misc. No. 24008-M of 2006 ( Mahalakshmi Spinners Limited and others Vs. State of Haryana and another ) decided on October 17, 2006.

Learned counsel for respondent no.2 submits that there is no bar under the Act for registration of FIR for the theft of energy committed by the petitioners. Merely because of Section 151 of the Act, which talks of filing of complaint does not automatically bar the Nigam from lodging the FIR. He further submits that even if there was any lacuna, same has now been cured with the amendment under Section 151 of the Act wherein a new proviso has been added vide the Electricity Amendment Act, 2007. Criminal Misc. No. 15719-M of 2005 -4- *** However, very fairly he did not deny the earlier view expressed by this Court in Mahalakshmi Spinners Limited's case (supra).

The relevant provisions of Electricity Act, namely Sections 135, 138 and 151 are extracted below:- “135. Theft of Electricity: (1) Whoever, dishonestly - (a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee; or (b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop- connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or (c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both: Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use - Criminal Misc.

Interference with meters or works of licensee- Criminal Misc. No. 15719-M of 2005 -7- *** (1) Whoever - (a) unauthorisedly connects any meter, indicator or apparatus with any electric line through which electricity is supplied by a licensee or disconnects the same from any such electric line; or (b) unauthorisedly reconnects any meter, indicator or apparatus with any electric line or other works being the property of a licensee when the said electric line or other works has or have been cut or disconnected; (c) lays or causes to be laid, or connects up any works for the purpose of communicating with any other works belonging to a licensee, (d) maliciously injures any meter, indicator, or apparatus belonging to a licensee or wilfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering; shall be publishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both, and, in the case of a continuing offence, with a daily fine which may extend to five hundred rupees; and if it is proved that any means exist for making such connection as is referred to in clause (a) or such reconnection as is referred to in clause (b), or such communication as is referred Criminal Misc. No. 15719-M of 2005 -8- *** to in clause (c), for causing such alteration or prevention as is referred to in clause (d), and that the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not, it shall be presumed, until the contrary is proved, that such connection, reconnection, communication, alteration, prevention or improper use, as the case may be, has been knowingly and wilfully caused by such consumer.”

151. Cognizance of offences – No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose.

Chapter XIV of the Act deals with offences and penalties. Section 135 of the Act deals with theft of electricity. Section 136 of the Act deals with theft of electric lines and materials and Section 137 of the Act deals with punishment for receiving stolen property belonging to the Nigam. Section 138 of the Act deals with interference with meters or works of licensee Section 139 of the Act deals with negligently breaking or damaging any material connected with the supply of electricity. Section 140 of the Act deals with penalty for intention to cut off the electric supply. Section 141 of the Act deals with maliciously extinguishes any public lamp. Section 151 of the Act deals with the issue as to who is competent to take cognizance of the offence under the Act and in what manner. Section 153 of the Act deals with establishment of special Court for the purpose of Criminal Misc. No. 15719-M of 2005 -9- *** providing speedy trial of offences referred to in Sections 135 to 139 by the State Government with the concurrence of the High Court.

Section 135 of the Act dealing with theft of electricity, provides that in case on inspection it is found that a consumer was indulging in theft of energy, the same is punishable with imprisonment for a term which may extend to three years or with fine or with both. Heavy punishment is provided for repeated offence.

Section 138 of the Act provides punishment for interference with meter or works of licensee. Any offence under this Section is punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both, and in case of a continuing offence, with a daily fine which may extend to five hundred rupees.

Section 151 of the Act specifically provides that no Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose.

On perusal of the above provisions of the Act, it is evident that for theft of energy and tampering with metering instruments etc. has been specifically provided as offence and punishments have also been provided. Section 151 of the Act clearly provides that no Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing before it.

The Electricity Act, 2003 came into force with effect from June 10, 2003 with the repeal of the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998 with a view to frame a consolidated law relating to generation, transmission, distribution, trading and use of electricity etc. Criminal Misc. No. 15719-M of 2005 -10- ***

The fact that the provisions of the Electricity Act, 2003 will apply being a special statute is also evident from a reading of other provisions of Chapter XIV. Section 150 of the Act deals with abetment that whosoever abets an offence punishable under this Act, shall, notwithstanding anything contained in the Indian Penal Code be punished with the punishment provided for the offence. Further Section 152 of the Act which deals with compounding of offences, starts with non obstante clause providing that notwithstanding anything contained in the Code of Criminal Procedure, the appropriate Government or any officer authorised by it in this behalf may accept from any consumer or person who committed or who is reasonably suspected of having committed an offence of theft of electricity punishable under this Act, a sum of money by way of compounding of the offence as specified in the table.

The principle of Generalia specialibus non derogant is well recognised.

On an issue as to whether the provisions of the Indian Arbitration Act, 1899 would apply in case arising under the Electricity Act was considered by Hon'ble the Supreme Court in Punjab State Electricity Board Vs. Bassi Cold Storage, Kharar and another 1994 Supp (2) Supreme Court Cases 124. Para 11 of the judgment can very well be referred to wherein it was opined that provisions of Electricity Act will be applicable over and above the Indian Arbitration Act, which is general in character.

The Indian Arbitration Act of 1899 being a general provision relating to settlement of disputes by arbitration and the Act having carved out certain matters only as available for determination by arbitration, we are of the view that on the principle of generalia specialibus non derogant, what has been provided in the Act would override the general provision contained in the Indian Arbitration Act of 1899 (which subsequently came to be Criminal Misc. No. 15719-M of 2005 -11- *** repealed by Arbitration Act of 1940 because of which in Section 52 as it stood at the relevant time reference has been made to Arbitration Act of 1940). So, the matters relating to which there is no direction in the Act required to be determined by arbitration cannot be the subject- matter of arbitration. This is for the reason of the Act being not only a special Act on the subject of which disputes covered by the Act could be decided by arbitration, but also because it is a later Act than the Indian Arbitration Act, 1899. Because of the existence of these two facets, we entertain no doubt that the aforesaid principle would apply on all fours, in view of what has been stated qua this principle in Ajay Kumar Banerjee v. Union of India; CST v. Agra Belting Works; Usmanbhai Dawoodbhai Memon v. State of Gujarat; Vijay Kumar Sharma v. State of Karnataka; Ashoka Marketing Ltd. v. Punjab National Bank ; and R.S.Raghunath v. State of Karnataka.

Hon'ble the Supreme Court in Narcotics Control Bureau Vs. Kishan Lal and others (1991) 1 Supreme Court Cases 705 while considering the provisions of Code of Criminal Procedure viz a viz Narcotic Drugs and Psychotropic Substances Act, 1985 opined that where there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such offences, the other powers under Cr.P.C. would be subject to such special enactment. The same principle was followed by Hon'ble the Supreme Court in Talcher Municipality Vs. Talcher Regulated Market Committee and another (2004) 6 Supreme Court Cases 178.

In Usmanbhai Dawoodbhai Memon and others Vs. State of Gujarat (1988) 2 Supreme Court Cases 271, the issue under consideration was regarding special procedure provided for TADA Act viz a viz Criminal Procedure Code. Dealing with the issue Hon'ble the Criminal Misc. No. 15719-M of 2005 -12- *** Supreme Court in para 17 thereof opined as under:-

The legislature by enacting the law has treated terrorism as a special criminal problem and created a special court called a Designated Court to deal with the special problem and provided for a special procedure for the trial of such offences. A grievance was made before us that the State Government by notification issued under Section 9 (1) of the Act has appointed District and Sessions Judges as well as Additional District and Sessions Judges to be Judges of such Designated Courts in the State. The use of ordinary courts does not necessarily imply the use of standard procedures. Just as the legislature can create a special court to deal with a special problem, it can also create new procedures within the existing system. Parliament in its wisdom has adopted the framework of the code but the Code is not applicable. The Act is a special Act and creates a new class of offences called terrorist acts and disruptive activities as defined in Sections 3 (1) and 4 (2) and provides for a special procedure for the trial of such offences. Under Section 9 (1), the Central Government or a State Government may by notification published in the Official Gazette, constitute one or more Designated Courts for the trial of offences under the Act for such area or areas, or for such case or class or group of cases as may be specified in the notification. The jurisdiction and power of a Designated Court is derived from the Act and it is the Act that one must primarily look to in deciding the question before us. Under Section 14 (1), a Designated Court has exclusive jurisdiction for the trial of offences under the Act and by virtue of Section 12 (1) it may also try any other offence with which the accused Criminal Misc. No. 15719-M of 2005 -13- *** may, under the Code, be charged at the same trial if the offence is connected with such other offence. Where an enactment provides for a special procedure for the trial of certain offences, it is that procedure that must be followed and not the one prescribed by the Code.

In Gobind Sugar Mills Ltd. Vs. State of Bihar and others (1999) 7 Supreme Court Cases 76, Hon'ble the Supreme Court while dealing with the issues as to whether the purchase tax on sugarcane was leviable under General Sales Tax Act or Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981 or which of the Act would apply, opined as under:- “While determining the question whether a statute is a general or a special one, focus must be on the principal subject-matter coupled with a particular perspective with reference to the intendment of the Act. Keeping in mind this basic principle, we will have to examine the provisions of the two Acts to find out whether it is possible to construe harmoniously the provisions of Section 4 of the Finance Act and Section 49 of the Sugarcane Act. If it is not possible then an effort will have to be made to ascertain whether the legislature had intended to accord the levy on sugarcane a special treatment vis-a-vis the levy of purchase tax on other items, and a further endeavour will have to be made to find out whether Section 49 of the Sugarcane Act excludes the applicability of the levy under Section 4 of the Finance Act. On a perusal of the provisions of the above Acts including the objects of the two Acts, it could be seen that the two enactments in question contemplate levy of purchase tax. While the Finance Act empowers the State to levy all commercial taxes generally, the Sugarcane Act empowers the levy of purchase tax only Criminal Misc. No. 15719-M of 2005 -14- *** on sugarcane. In this background, there can be no doubt that the legislature intended to enact a special enactment for the purpose of levy of purchase tax with reference to sugarcane under the Sugarcane Act to the exclusion of such levy under the Finance Act. Once we come to the conclusion that this is the intention of the legislation then the rule “general provision should yield to special provision” is squarely attracted.”

In Dilawar Singh Vs. Parvinder Singh alias Iqbal Singh and another (2005) 12 Supreme Court Cases 709 while dealing with the issue as to whether the Prevention of Corruption Act, 1988 or Code of Criminal Procedure would apply, Hon'ble the Supreme Court opined as under:- “The contention raised by learned counsel for the respondent that a court takes cognizance of an offence and not of an offender holds good when a Magistrate takes cognizance of an offence under Section 190 Cr.P.C. The observations made by this Court in Raghubans Dubey V. State of Bihar were also made in that context. The Prevention of Corruption Act is a special statute and as the preamble shows, this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. ( See Godde Venkateswara Rao v. Govt. of A.P., State of Bihar Vs. Dr. Yogendra Singh and Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth). Therefore, the provisions of Section 19 of the Act will have an overriding effect over the general provisions Criminal Misc. No. 15719-M of 2005 -15- *** contained in Section 190 or 319 Cr.P.C. A Speical Judge while trying an offence under the Prevention of Corruption Act, 1988, cannot summon another person and proceed against him in the purported exercise of power under Section 319 Cr.P.C. if no sanction has been granted by the appropriate authority for prosecution of such a person as the existence of a sanction is sine qua non for taking cognizance of the offence qua that person.

This Court while Considering an identical issue in Criminal Misc. No. 24008-M of 2006 (Mahalakshmi Spinners Limited and others Vs. State of Haryana and another) decided on October 17, 2006 opined as under:- “On the other hand, Section 379 IPC deals with punishment for a simple case of theft. When there is a specific/special law covering the question of theft of electricity i.e. Section 135 of the Act, the general law contained in Section 379 IPC will not be applicable. Any attempt by the police to add offence under Section 379 IPC will be a crude devise by the prosecution to overcome the likely objection from the accused about the filing of the complaint instead of registration of FIR. Law is well settled that special law will prevail over the general law. Once there is a specific provision in the Act in respect of providing of punishment for theft of electricity, no offence under Section 379 IPC could be alleged by the prosecution or later on added during the investigation so as to pre-empt the taking of plea by the accused that no prosecution for the offence under Section 135 of the Act could be launched except upon a complaint by the authorized officer.

In view of my above discussions, it can safely be opined that there is a special Act in the form of the Electricity Act, 2003 dealing with all issues relating to electricity including the offence of theft of energy. The provisions of IPC which are general in nature shall not be applicable for booking a person for theft of energy. If the provisions of the Act are examined, the Court can take cognizance of offence punishable under the Act only on filing of a complaint whereas in the present case the FIR was registered and consequent thereupon challan was presented in the Court under Section 173 of the Code of Criminal Procedure, which is not in accordance with law. Criminal Misc. No. 15719-M of 2005 -19- ***

Though a proviso has been added to Section 151 of the Act vide amendment notified with effect from June 15, 2007 to the effect that the Court may take cognizance of an offence punishable under the Act upon a report of a Police Officer filed under Section 173 of the Code of Criminal Procedure but the same shall not be of any aid to the respondents for the reason that it came into force after the FIRs in the present case had already been lodged. Learned counsel for the respondents has not been able to point out that amendment is retrospective in nature.

However, Uttari Haryana Bijli Vitran Nigam Limited will be at liberty to file a criminal complaint, if so advised.

The petitions are disposed of accordingly. January 22, 2008 Pka (Rajesh Bindal) Judge (Refer to reporter) Criminal Misc. No. 15719-M of 2005 -20- ***