M.M.S Bedi, J.:— Through the instant petition under Section 482 Cr.P.C inherent jurisdiction of this Court has been invoked for quashing of the criminal proceedings launched against the petitioner for having committed the theft of electricity. Petitioner seeks the quashing of FIR, annexure P-1. final report annexure P-2 and the order dated March 25, 2008 (P-3) framing charge against the petitioner.
2. FIR annexure P-1 was registered at the instance of Sh. V.P Saini, a candidate of All India Forward Block alleging that the members of Nukkar Meeting Prabandhaks by applying kundi, in the Government electric wires were committing theft of electricity. Copies of the CDs and photographs was sent by the Returning Officer i.e Sub-Divisional Magistrate, Rupnagar to the SHO Police Station City, Rupnagar. As per the final report annexure P-2, the legal opinion of District Attorney, Legal, was obtained and the case was registered. The investigation of the case was carried out by SI Kesar Singh, SHO Police Station City Rupnagar Vivek Kumar, Jagdish Kajla (petitioner No. 2) and Raman Kapila (petitioner No. 1) were named in the FIR. They were arrested on different dates and challan under Section 173 Cr.P.C for offence under Sections 379, 120-B (2) IPC was registered against them, CJM, Ropar vide order annexure P-2 dated March 25, 2008 framed charge under Sections 389 and 120-B (2) IPC, against the petitioners.
3. Before exercising inherent jurisdiction under Section 482 Cr.P.C, it would not be out of place to observe here that the petitioner has got an alternative remedy of filing a revision application under Section 397 Cr.P.C before the Sessions Court. Normally, when an alternative remedy is available, the exercise of inherent jurisdiction should be avoided. As per the law laid down in Dhariwal Tobaco Products Ltd. v. State of Maharashtra, 2009 (1) R.A.J 405 : 2009 (1) RCR (Crl.) 677, the Apex Court has held that a petition under Section 482 Cr.P.C cannot be dismissed merely on the ground that remedy of revision under Section 397 Cr.P.C is available to the applicant. But where the High Court comes to a conclusion that allowing the proceedings to continue would be an abuse of the process of the Court and that the ends of justice require that the proceedings should be quashed, it would not hesitate to do so.
4. In the present case after appreciating the peculiar facts, it appears that from the very inception there has been gross violation of the statutory provisions and the machinery of prosecution has been initiated against the petitioners solely on the misconceived opinion of District Attorney, Legal, who has failed to appreciate the provisions of Section 135 of the Electricity Act, 2003, (for short ‘the Act’) and has also failed to note the relevant case law on the point in issue settled by this Court, Calcutta High Court and the Supreme Court in following cases:
i) Mahalakshmi Spinners Ltd. v. State of Haryana, 2007 (1) R.C.R (Civil) 381 : 2007 (1) RCR (Crl.) 387;
ii) Biswanath Patra v. Divisional Engineer (E) S&LP, 2008 (1) RCR (Crl.) 836, and
iii) Avtar Singh v. State Of Punjab , AIR 1965 SC 666.
5. This High Court in Mahalakshmi Spinners Ltd. case (supra) was dealing with a case in which Uttar Haryana Bijli Vitran Nigam Ltd. had conducted a rain in the premises of M/s Mahalakshmi Spinners Ltd. and found dishonest use of electricity and theft of electrical lines. An FIR was registered under Section 135, 138 of the Electricity Act and Section 379 IPC. Sections 135 and 151 of the Electricity Act, 2003 is reproduced as under:
“Section 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 as 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—
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a tern not less than six months but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity.
Provided further that if it is proved that any artificial means or means not authorised by the Board or licensee exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
(2) Any officer authorised in this behalf by the State Government may—
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being, used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been or is being used for unauthorised use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts there from in his presence.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.”
“Section 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.”
6. After dealing with the provisions of Section 151 of the Act, debarring the taking up of a cognizance by a Court for an offence punishable under the Act and 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 and the provision of Section 135 of the Act dealing with theft of electricity and Section 138 of the Act pertaining to interference with meters or works of licensee, it was held as follows:
“10. Regarding taking cognizance of the offences under Sections 135 and 138 of the Act, Section 151 clearly lays down that no Court should take cognizance of those offences except upon a complaint in writing made by the Appropriate Government or Appropriate Commission or Chief Electrical Inspector or Electrical Inspector or Licensee. Thus, the registration of FIR was clearly not permitted by the said provision.” So far as offence under Section 379 IPC is concerned, it was held as follows:
“8. 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.
9. In view of the above, the respondents cannot take the shield by adding the offence under Section 379 IPC to the criminal proceedings registered against the petitioners by way of FIR.”
7. Applying the ratio Mahalakshmi Spinners Ltd. case (supra) to the facts of the present case it is apparent that no complaint under Section 151 of the Act has been filed by any competent person under the Act, for theft of electricity under Section 135 of the Act. As the cognizance cannot be taken by a Court in the matter of theft of electricity. So far as offence under Section 379 IPC is concerned, in view of specific provisions of Section 135 of the Act, the general provisions of Indian Penal Code contained in Section 379 will not be permissible as special law will always prevail over the general law. The launching of prosecution under Section 379 IPC on the basis of complaint of Returning Officer is patent illegality. The FIR seems to have been registered for political rivalry of respondent No. 2 against the petitioners. The law laid down by the Apex Court in Avtar Singh's case (supra) is fully applicable to the facts and circumstances of this case. In the said case Hon'ble Supreme Court while dealing with Section 29 of the Act which is pari-materia to Section 135 of the Act, in view of Sections 50 of the unamended Act which is same as Section 151 of the present Act, held that the objection of Section 50 was to prevent prosecution for the offences under the Indian Electricity Act, 1910, unless and until the complaint was lodged by men possession special qualifications. The subject matter of the FIR i.e theft of electricity has to be established only by the persons well-versed with the techniques and instruments dealing with the electrical energy. As the electricity which is energy cannot be said o be a moveable property. Launching of prosecution by an unauthorized person regarding theft of electricity and registration of FIR on the basis of information of layman, framing of charges vide order dated March 25, 2008 and continuation of criminal proceedings against the petitioner are patently an abuse of the process of the Court as such the FIR, charge sheet and the order of framing of charges, annexure P-3, qua the petitioners, are hereby quashed.
Allowed in the aforesaid terms.