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Chabi Rani Ghosh v. Cesc Limited & Ors.
Factual and Procedural Background
The writ petitioner challenged the validity of Golabari P.S Case No. 149 of 2005 dated June 22, 2005, which was initiated under section 135 of the Electricity Act, 2003, as well as the disconnection of electricity supply effected by the respondents. The petitioner was accused of theft of electricity, leading the police, upon complaint by CESC authorities, to register an FIR and conduct investigations. The petitioner contended that the FIR was wrongly registered and that the disconnection was unlawful.
Legal Issues Presented
- Whether the police were competent to register an FIR and investigate an offence under section 135 of the Electricity Act, 2003, given the petitioner’s contention that it is a non-cognizable offence under section 151 of the Act.
- Whether the police or authorized officers required a search warrant to search the petitioner’s premises and seize articles allegedly connected with theft of electricity under section 135(4) of the Electricity Act, 2003.
- Whether the disconnection of electricity supply was valid in light of procedural requirements, including the presence of the petitioner, service of prior notice, and the right of appeal under the West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulation, 2004.
Arguments of the Parties
Petitioner’s Arguments
- The FIR registered under section 135 of the Electricity Act, 2003 was invalid because, under section 151 of the Act, the offence is non-cognizable and police were not competent to register the FIR or investigate.
- Police and authorized officers were not empowered to search the petitioner’s premises or seize articles without a search warrant as required under section 135(4) of the Act.
- The disconnection of electricity supply was unlawful as it was effected in the petitioner’s absence, violating procedural safeguards, including the requirement of prior notice under para 5.2.1 of the West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulation, 2004.
- The petitioner was denied a forum to appeal against the disconnection.
Respondents’ Arguments
- The offence under section 135 of the Electricity Act, 2003 is punishable with imprisonment up to three years, making it a cognizable offence under the First Schedule to the Code of Criminal Procedure, 1973, thereby permitting police registration of FIR and investigation.
- Section 135(2) of the Electricity Act, 2003 expressly empowers the authorized officer to search premises and seize offending articles without requiring a search warrant, and police may assist in this process.
- The disconnection was valid as it is a necessary consequence of detecting theft of electricity, and prior notice before detection is not required under the regulations.
- The petitioner had received notice of the proposed disconnection through a representative and had the right to appeal against assessment orders under section 126 of the Electricity Act, 2003, which was being pursued separately.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court analyzed the petitioner’s contentions primarily by interpreting the relevant statutory provisions of the Electricity Act, 2003, and their interaction with the Code of Criminal Procedure, 1973. It held that section 151 of the Electricity Act, 2003, governs the manner and timing of court cognizance of offences and does not affect the police’s competence to register an FIR or investigate under section 135. The offence under section 135, punishable by imprisonment up to three years, qualifies as a cognizable offence under the First Schedule to the CrPC, thus permitting police action.
Regarding search and seizure, the Court emphasized that section 135(2) specifically empowers authorized officers to search premises and seize articles without a search warrant. While section 135(4) incorporates CrPC provisions on search and seizure “as far as may be,” this does not override the clear statutory authority granted to authorized officers. Police may assist authorized officers in this process.
On the validity of disconnection, the Court reasoned that disconnection is a direct consequence of detecting theft of electricity, and prior notice before such detection is neither required nor mandated by the Electricity Supply Code Regulation, 2004. The petitioner’s representative had received due notice before disconnection. The Court also found the petitioner’s argument about the lack of an appeal forum irrelevant to the validity of disconnection.
The Court declined to comment on assessment orders under section 126 of the Electricity Act, 2003, as these were not challenged in the writ petition.
Holding and Implications
The Court’s final decision was to dismiss the writ petition for lack of merit.
The direct effect of this decision is the validation of the FIR registered under section 135 of the Electricity Act, 2003, the lawfulness of searches and seizures conducted without a search warrant by authorized officers with police assistance, and the validity of the disconnection of electricity supply under the circumstances described. The opinion does not establish any new precedent beyond the application of existing statutory provisions to the facts of this case.
J.K Biswas, J.:— The writ petitioner questions the validity of Golabari P.S Case No. 149 of 2005 dated June 22nd, 2005 initiated under section 135 of the Electricity Act, 2003 and also of the disconnection of supply effected by the respondents.
2. Advocate for the petitioner says that alleging theft of electricity by the petitioner, as consumer within the meaning of the Electricity Act 2003, police authorities on the complaint of CESC authorities, wrongfully registered an FIR under section 135 of the Electricity Act, 2003. He contends that since, in view of provisions of section 151 of the Electricity Act, 2003, an offence committed under section 135 thereof in a non-cognizable offence, police was not competent to register the FIR and make investigation.
3. His further submission is that in view of section 135 (4) of the Electricity Act, 2003, without obtaining a duly issued search warrant, police authorities or the authorised officer was not competent to search the premises, and seize the articles, allegedly connected with the act of theft of electricity.
4. According to him, as a result, the FIR, in so far as the petitioner is concerned, is liable to be quashed.
5. I am unable to agree with him. Provision of section 151 of the Electricity Act, 2003 have nothing to do with classification of the offence committed under section 135 of the Electricity Act, 2003, either as a cognizable offence or as a non-cognizable offence. They only provide the manner how, and the time when, the Court shall take cognizance of any offence committed under any provisions of the Electricity Act, 2003.
6. Needless to say that acts of the police leading to registration of an FIR and making the investigation have nothing to do with the exact stage of taking cognizance of the offence by the Court.
7. Admittedly, an offence committed under section 135 of the Electricity Act, 2003 is punishable with imprisonment for three years. Hence in view of provisions of the first schedule to the Code of Criminal Procedure, 1973 such an offence has to be regarded as a cognizable offence. So on receipt of information about commission of an offence under the provision by anyone, police can register an FIR under section 154 of the Code of Criminal Procedure, 1973.
8. I also do not find any merit in the submission that in the absence of any search warrant, duly issued by the competent magistrate, police authorities and the authorised officer would not he empowered to search the premises of the consumer (here the premises of the petitioner) and seize the offending articles.
9. Provisions of sub-section (2) of section 135 of the Electricity Act, 2003 distinctly empower the authorized officer to search the premises and seize the offending articles. Sub-section 4 thereof only says that provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under the Electricity Act, 2003.
10. In my view, when the statute gives specific power to the authorized officer to search the premises and seize the offending articles, there is no scope to say that in the absence of a search warrant, duly issued by the magistrate, the authorised officer would not be entitled to exercise the power. If such an interpretation is given, then the clear and unambiguous intention of the legislature indicated in section 135 (2) of the Electricity Act, 2003 shall simply be defeated.
11. In such a case the police authorities, it seems to me, act only in aid of the exercise of power by the authorized officer. I do not see anything wrong if the authorised officer takes the assistance of the police authorities for the purposes of detecting a case of unauthorized use of electricity by a consumer, searching the premises in question, seizing the offending articles, etc.
12. For these reasons, I find no merit in the contention that the FIR registered by the police authorities cannot be permitted to be acted upon for making further investigation and instituting the criminal case by the competent authority before the competent Court.
13. As to validity of disconnection of supply, advocate for the petitioner says that it was effected in violation of provisions of section 135 of the Electricity Act, 2003, in that it was effected in the physical absence of the petitioner, though her son was present, and also in violation of para 5.2.1 of the West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulation, 2004, in that though the provision required service of prior notice regarding the proposed disconnection, no such notice had been served before entering into the premises. He further says that, though under said provisions of para 5.2.1 the petitioner had a right of appeal against disconnection, no forum was made available.
14. I also do not find any substance in the contention that in view of provisions of para 5.2.1 of the 2004 regulation, the petitioner was entitled to get a prior notice about the proposed disconnection on the allegation of theft of electricity by her.
15. The disconnection according to the provision is a necessary consequence of detection of a case of theft of electricity by a consumer. So, before detecting an act of theft there is no question of serving a prior notice on the consumer about any proposed disconnection. The consumer has no right to get a notice saying that the authorised officer would search the premises at a particular time on a future day for detecting the act of theft of electricity by the consumer.
16. There is no dispute in this case that before disconnection notice had been duly served by the inspecting team about the proposed disconnection on the allegation of theft of electricity, and that the notice was received by the person who represented the petitioner at the time in question.
17. I do not see how a reference to the right of appeal against disconnection is relevant in the case. The absence of a forum for preferring the appeal cannot make the disconnection bad.
18. Advocate for CESC submits that the assessing officer has already made the order of provisional assessment in terms of section 126 of the Electricity Act, 2003, and that the petitioner has already preferred an appeal before the appellate authority. Advocate for the petitioner clearly says that in this writ petition his client is not challenging the orders made by the assessing officer under section 126 of the Electricity Act, 2003. So, there is no reason for me to say anything regarding restoration of supply that is wholly connected with the assessment proceeding already initiated.
For these reasons I do not find any merit in the writ petition. It is accordingly dismissed without any order for costs.
Xerox copy of this order duly countersigned by the Assistant Registrar (Court)/Assistant Court Officer shall be given to advocates for the parties on usual undertakings.
Petition dismissed
S.B
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