M.M.S BEDI. (J) (Oral)
Petitioner seeks quashing of FIR No. 278 dated 11.7.1987, charge-sheet dated 21.9.1995 and all proceedings emanating therefrom against the petitioner on the ground that no offence is made out.
Vide order dated 21.9.1995, Additional Chief Judicial Magistrate, Faridabad, has discharged the employees of Haryana State Electricity Board, on account of absence of sanction for prosecution against them, however opted to charge the petitioner under Section 39 of the Electricity Act read with Section 379 IPC. FIR in this case was registered on the complaint of Director, Vigilance & Security, Haryana State Electricity Board, Chandigarh, in a joint complaint against total ninety-one units alleging that the consumers and the employees of Haryana State Electricity Board were responsible for theft of electric energy. It was complaint that the officials had also been indulging in connivance with the consumers in tampering the meter readings and facilitate the theft of electricity every day thereby huge revenue loss to the Haryana State Electricity Board. It is pertinent to observe that about 54 persons had been discharged in the present FIR vide order dated 9.8.2002 by the Additional Sessions Judge, Faridabad. The said order was challenged by State of Haryana in Crl. Misc. No. 7169-M of 2003 State of Haryana v. Multan Singh. Vide order dated 26.8.2003, the said petition was dismissed observing as follows:-
“I find that there is absolutely no evidence on the file that any of the consumer challaned has committed theft of electricity. It has been held by Hon'ble Apex Court in Ram Chandra Prasad Sharma and others v. State of Bihar an another AIR 1957 SC 349 that presence of a perfected artificial means to tender abstraction of energy possible must be establishes. It has been further observed that mere allegations about tampering of meter and control of accused over it is not sufficient. In the present case, there is a report Annexure R-1of the Xen M&P Divn. Faridabad dated 23.12.1987 which he had made after checking of the meters, during the year 1987. He, on checking, found most of the meters to be OK but some other meters could not be checked as the premises were closed and some nearby meters were found running fast. One or two meters were found running slow. Thus, the prosecution has not produced any documentary evidence or otherwise that the respondents had committed theft of electricity by tampering the meters in any other manner. Thus, It cannot be said that there was dishonest abstraction of energy. There is no illegality or impropriety in the impugned order of learned Additional Sessions Judge, Faridabad dated 9.8.2002”
Through the instant petition under Section 482 Cr.P.C, the petitioner seeks the quashing of FIR and the charges under Section 39 of the Indian Electricity Act 1910 and Section 379 IPC. So far as theft of electricity and applicability of Section 379 IPC is concerned, this Court in Crl. Misc. No. 18718 of 2008 Raman Kapila and another v. State of Punjab has held as follows:-
“Applying the ratio M/s Mahalakshmi Spinners Ltd. And others v. State of Haryana and another, 2007 (1) RCR (Crl) 387 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 such 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 applicable 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 v. State Of Punjab , AIR 1965 SC 666 is fully applicable to the facts and circumstances of this case. In the said case, Hon'ble Supreme Court while dealing with Section 39 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 object 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 possessing 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 to 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 lay-man, 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 charge, annexure P-3, qua the petitioners, are hereby quashed.”
In the present case also applying the ratio of above said judgment, I am of the considered opinion that no complaint under Section 151 of the Electricity Act, has been filed by any competent person under the Electricity Act for theft of electricity under Section 135 of the Act as such the cognizance cannot be taken by a Court in the matter of theft of electricity. The framing of charge under Section 379 IPC, in view of the provisions of Section 135 of the Electricity Act, the general provisions of Indian Penal Code contained in Section 379 will not be applicable, as “special law” always prevails over the general law. Launching of prosecution under Section 379 IPC on the basis of the complaint of Director, Vigilance & Security, Haryana State Electricity Board, Chandigarh, is a patent illegality.
In view of judgment in State of Haryana v. Multan Singh and Raman Kapila and another v. State of Punjab, the FIR No. 278 dated 11.7.1987, charge sheet dated 24.5.1989 and all the subsequent proceedings deserve to be quashed being abuse of process of the Court.
Accordingly, the petition is allowed. FIR No. 278 dated 11.7.1987, charge sheet dated 21.9.1995 and all the subsequent proceedings are hereby quashed.
This order will not in any manner grant immunity to the petitioners from the liabilities, if any, arising on account of established misuser/user of the electricity. Nothing said in the judgment will prejudice the right of the Electricity Board in proceedings, if any, pending for recovery against the petitioner.
May 1, 2009 (M.M.S Bedi) tripti Judge