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2002 DIGILAW 533 (PNJ)

Harbhajan Singh v. State Of Punjab

2002-05-14

ASHUTOSH MOHUNTA

body2002
Judgment Ashutosh Mohunta, J. 1. This judgment will dispose of Criminal Misc. Nos. 17197-M and 17199-M of 1994 as both the petitions have arisen out of the common F.I.R. No. 10 dated February 5, 1993 under Section 39 of the Indian Electricity Act, 1910 (for short `the Electricity Act) and Section 379 of the Indian Penal Code, registered at Police Station City, Tarn Taran, District Amritsar. The petitioners have prayed for quashment of the said F.I.R. and the Police report under Section 171 of the Code of Criminal Procedure, 1973, filed before the Sub-Divisional Judicial Magistrate, Tarn Taran on August 24, 1993 and the charges framed by the Magistrate on September 23, 1993. 2. The allegations levelled against the petitioners are that on checking of the electricity meters, installed at the premises of the petitioners, by Flying Squad of the Punjab State Electricity Board on January 25, 1993, the seals thereon were found tampered with. A report was made to the Police by the Assistant Executive Engineer, Rural Sub-Division, Punjab State Electricity Board, Tarn Taran, to the effect that the petitioners were caught committing theft of electricity, which was a case of electricity theft under Section 39 of the Electricity Act. A case was registered against the petitioners on the basis thereof. On the basis of the F.I.R., challan under Section 173, Code of Criminal Procedure, 1973, was submitted before the Sub Divisional Judicial Magistrate, Tarn Taran. The petitioners were charged for the offence falling under Section 39 of the Electricity Act and Section 379 of the Indian Penal Code, by the learned Magistrate. 3. Learned counsel for the petitioners has contended that even if for the sake of argument it is admitted that the seals of the electricity meter were found to be tampered with, this by itself does not amount to an abstraction of electricity. Further, it has been contended that no specimen impression of the seal used on the meter was ever given to the petitioners. Still further, it has been contended that meters were regularly checked by the staff of the Punjab State Electricity Board and it was for them to seal or unseal the electricity meters. The petitioners had nothing to do with the seals on the meters. It has further been contended by the learned counsel for the petitioners that there were two separate raids on two premises owned by separate petitioners. The petitioners had nothing to do with the seals on the meters. It has further been contended by the learned counsel for the petitioners that there were two separate raids on two premises owned by separate petitioners. Thus, there were two transactions. In spite of that only one case has been registered against all the petitioners. On this basis, the learned counsel contends that the first information report deserves to be quashed. Another contention of the learned counsel for the petitioners is that an offence under the Electricity Act is not an offence under the Indian Penal Code. In this way the prosecution of the consumer by the Police is illegal. Thus, the learned counsel submits that the first information report and other proceedings undertaken pursuant thereto are illegal and deserve quashment. Lastly, the learned counsel submits that all the dues against the petitioners have been paid. 4. I find merit in the contention raised by the learned counsel for the petitioners. It has been held in Ram Chandra Prasad Sharma and others v. State of Bihar and anothers AIR 1967 Supreme Court 349, by their Lordships of the Supreme Court that before raising "a presumption under S. 39 of the Electricity Act that there is a dishonest abstraction of energy, the presence of a perfected artificial means which will render abstraction of energy possible has to be established by the prosecution. It is further necessary to show that there was a dishonest abstraction, consumption or use of electrical energy by the accused person. It is not sufficient to say that a meter has been tampered with and that it is under the control of the accused person." Further it has been held by the Honble Supreme Court in Jagannath Singh v. H. Krishna Murthy and another, AIR 1967 Supreme Court 947, that the existence of tampered meter does not amount to such artificial means for the abstraction of electricity as would make it an offence under Section 39 of the Electricity Act. In this view of the matter, no offence under Section 39 of the Electricity Act read with Section 379, Indian Penal Code, is made out against the petitioners. 5. In the light of the above, I allow both the petitions and quash the impugned F.I.R. and all other proceedings undertaken against the petitioners pursuant thereto. Petitions allowed.