JUDGMENT
Dated this the 26th day of November, 2024
Heard Sri.K.A Salil Narayanan, learned counsel appearing for the petitioner and Sri.B.Premod, learned Standing Counsel for the respondents.
2. The petitioner claimed to be the Managing Director of Fathima Hospital at Calicut. A criminal prosecution was lodged against the petitioner on the allegation that he had committed an offence under Section 39 read with Section 44 of the Indian Electricity Act, 1910, for which the First Information Report was lodged on 01.12.2002. The amount for the alleged electricity theft was assessed to Rs.24,39,629/-. The said criminal case is pending before the Sessions Court, Kozhikode Division as SC No.109/2010.
3. The petitioner had challenged the imposition of penalty of Rs.23,57,776/- in W.P.(C.) No.15790/2003. However, the said writ petition came to be dismissed vide judgment dated 31.10.2005. The petitioner had paid the total assessed amount for electricity theft of Rs.24,39,629/-
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and the Electricity Board has nothing to recover from the petitioner in respect of the said amount assessed.
4. The Indian Electricity Act of 1910, was repealed by the Electricity Act of 2003. The Indian Electricity Act, 1910, does not provide any provision for compounding of the offences committed under the Electricity Act. However, Section 152 of the Electricity Act, 2003, provides for compounding of the offences committed under the Electricity Act, 2003.
5. Section 185 of the Electricity Act, 2003 is repealing and saving provision, which would read as under:
Section 185. (Repeal and saving): --- (1) Save as otherwise provided in this Act, the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998 are hereby repealed.
(2) Notwithstanding such repeal, - The Electricity Act, 2003
(a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, in so far as it is not inconsistent with the provisions of this
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Act, be deemed to have been done or taken under the corresponding provisions of this Act
(b) the provisions contained in sections 12 to 18 of the Indian Electricity Act, 1910 and rules made thereunder shall have effect until the rules under section 67 to 69 of this Act are made;.
(c) the Indian Electricity Rules, 1956 made under section 37 of the Indian Electricity Act, 1910 as it stood before such repeal shall continue to be in force till the regulations under section 53 of this Act are made.
(d) all rules made under sub-section (1) of section 69 of the Electricity (Supply) Act, 1948 shall continue to have effect until such rules are rescinded or modified, as the case may be;
(e) all directives issued, before the commencement of this Act, by a State Government under the enactments specified in the Schedule shall continue to apply for the period for which such directions were issued by the State Government.
(3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the States in which such enactments are applicable.
(4) The Central Government may, as and when considered necessary, by notification, amend the Schedule.
(5) Save as otherwise provided in sub-section (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897, with regard to the effect of repeals."
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6. From reading of Clause (a) of Sub Section 2 of Section 185, it is evident that anything done or any action taken or purported to have been done or taken etc., insofar as not inconsistent with the provisions of the Act of 2003, be deemed to have been done or taken under the corresponding provisions of the Act of 2003.
7. Section 152 provides for compounding of the offences, which would read as under:
"Section 152. (Compounding of offences): --- (1) Notwithstanding anything contained in the Code of Criminal Procedure 1973, the Appropriate Government or any officer authorized 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 below:
TABLE
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--- Nature of Service Rate at which the sum of money for
Compounding to be collected per Kilowatt(KW)/Horse
Power(HP) or part thereof for Low Tension (LT) supply and
per Kilo Volt Ampere(KVA) of contracted demand for High
Tension (HT)
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(1) (2)
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1. Industrial Service twenty thousand rupees;
2. Commercial Service ten thousand rupees;
3. Agricultural Service two thousand rupees;
4. Other Services four thousand rupees:
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Provided that the Appropriate Government may, by
notification in the Official Gazette, amend the rates
specified in the Table above.
(2) On payment of the sum of money in accordance with sub-section (1), any person in custody in connection with that offence shall be set at liberty and no proceedings shall be instituted or continued against such consumer or person in any criminal court.
(3) The acceptance of the sum of money for compounding an offence in accordance with sub-section (1) by the Appropriate Government or an officer empowered in this behalf empowered in this behalf shall be deemed to amount to an acquittal within the meaning of section 300 of the Code of Criminal Procedure, 1973.
(4)The Compounding of an offence under sub-section (1) shall be allowed only once for any person or consumer."
8. Thus, an offence of electricity theft has been made compoundable under Section 152, on payment of compounding fee.
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9. The petitioner has committed an offence under the Act of 1910. As the date of FIR was 01.12.2002, and the Electricity Act 2003 came into force on 02.06.2003, When the offences of electricity theft have been made compoundable under the Electricity Act 2003 as compounding of offence is not inconsistent with the provisions of the Act of 2003, then the continuation of the proceedings for the offences of theft committed under the Act of 1910, would not be justified.
10. Therefore, I am of the view that the stand taken by the respondent for rejecting the compounding application in Ext.P4, vide order dated 14.07.2022 in Ext.P5, on the ground that the offence was committed under the Electricity Act,1910, cannot be compounded under the new Act ie., the Electricity Act 2003, is unjustifiable.
Thus, the writ petition is allowed. The impugned order in Ext.P5 is set aside, and the 2ndrespondent is directed to accept the compounding fee from the petitioner and compound the offence. On accepting the compounding fee
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and compounding the offence, the prosecution in S.C No.109/2010 pending before the Sessions Court, Kozhikode Division, shall be closed.
Sd/-
D. K.SINGH
JUDGE
AP