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2012 DIGILAW 1573 (PAT)

Santosh Kumar v. State of Bihar

2012-11-23

HEMANT KUMAR SRIVASTAVA

body2012
ORDER All the above-said cases were heard together as common questions of law are involved in the above-said cases and, accordingly, all the above-said cases are being disposed of by this common order. 2. Cr. Misc. No. 4613 of 2010 has been filed by the petitioner, Dr. Santosh Kumar for quashing the FIR of Phulwari Sharif P.S. Case No. 336 of 2009 alongwith inspection report dated 18-08-2009 filed by Assistant Electrical Engineer, Electric Supply Sub Division, Khagaul. 3. Cr. Misc. No. 6696 of 2010 has been filed by the petitioner, Sachidanand Rastogi u/S 482 of the Cr.P.C. for quashing the FIR of Digha P.S. Case No. 168 of 2008 alongwith final assessment amount filed by the Assistant Electrical Engineer, Electric Supply Sub Division, Digha, Patna. 4. Similarly, Cr. Misc. No. 6939 of 2010 has been filed by the petitioner, Lalita Devi @ Lalti Devi for quashing the FIR of Fatuha P.S. Case No. 476 of 2009 alongwith inspection report dated 10-12-2009 filed by the Assistant Electrical Engineer, Supply, Fatuha whereas; Cr. Misc. No. 6956 of 2010 has been filed by the petitioner Satya Narayan Prasad u/S 482 of the Cr.P.C. for quashing the same FIR i.e. Fatuha P.S. Case No. 476 of 2009 and inspection report dated 10-12-2009. 5. In Cr. Misc. No. 4613 of 2010, the officials of Electricity Department, raided the premises of petitioner and found that the petitioner was illegally and stealthily consuming electric energy by tampering with meter and, accordingly, he caused damage to the electricity department to the tune of Rs 1,85,000/- and, accordingly, Fulwari Sharif P.S. Case No. 336 of 2009 under Section-379 of the Indian Penal Code and 135/138 of Electricity Act was registered against him. 6. In Cr. Misc. No. 6696 of 2010, the electrical officials raided the factory of petitioner and found that the petitioner was illegally consuming electric energy by tampering with meter and accordingly, he caused damage to the electric department to the tune of Rs 8,45,820/- and thereafter, Digha P.S. Case No. 168 of 2008 u/S 135 of Electricity Act was registered against the petitioner on the basis of written report of opposite party No. 2 who was working as Assistant Electrical Engineer at the relevant time. 7. Similarly, in Cr. Misc. Nos. 7. Similarly, in Cr. Misc. Nos. 6939 of 2010 & 6956 of 2010, the officials of Electricity Department raided the business premises of the petitioners and found that they were illegally consuming electric energy by tampering with the meter and, accordingly, they caused damage to the electricity department to the tune of Rs 3,25,000/- & 3,00,000/- respectively and, thereafter, Fatuha P.S. Case No. 476 of 2009 was registered against both the petitioners. 8. Notices were issued to opposite parties and counter affidavit has been filed on behalf of Bihar State Electricity Board. 9. It is pointed out by learned counsel appearing for petitioners that inspection report dated 18-08-2009 prepared in connection with Phulwari Sharif P.S. Case No. 336 of 2009 was challenged by the petitioner before the Appellate Authority-cum-Electrical Executive Engineer, Electric Works Division, Patna and in Appeal No. 02 of 2009, the aforesaid inspection report dated 18-08-2009 was set aside by the Appellate Authority and while setting aside the aforesaid inspection report, the Appellate Authority observed that no offence u/S 135/138 of Electricity Act is made out in Phulwari Sharif P.S. Case No. 336 of 2009. It is further contended by him that there is almost similar position in rest cases and, therefore, when the inspection report has already been set aside which is the basis of the first information report, there is no need to permit to continue the prosecution of the petitioners for the offence u/S 135/138 of the Electricity Act. Learned counsel for the petitioners referred an unreported decision of this court passed on 20-03-2012 in CWJC No. 1039 of 2011 in which, another bench of this court has held that in absence of inspection report, there is no justification to permit the continuance of case of theft of electricity. Another unreported decisions cited on behalf of the petitioners, are order dated 21-12-2009 passed in CWJC No. 15996 of 2009 and order dated 03-12-2009 passed in CWJC No. 14213 of 2009. 10. Learned counsel for the petitioners further submitted that the FIR is not maintainable in view of Section-151 of the Electricity Act, 2003 and only a complaint is maintainable in view of the above-said section. In support of his contention, he referred a decision reported in PLJR 2009 (3) 767. 10. Learned counsel for the petitioners further submitted that the FIR is not maintainable in view of Section-151 of the Electricity Act, 2003 and only a complaint is maintainable in view of the above-said section. In support of his contention, he referred a decision reported in PLJR 2009 (3) 767. It is further contended by him that the informant of the above-said FIR as well as officials of Electric Department violated several mandatory provisions of Supply Code of 2007 and, therefore, the prosecution of the petitioners cannot be permitted. 11. On the otherhand, learned counsel appearing for the Board refuted the above-said submissions arguing that Section-151 of the Electric Act, 2003 has already been amended in the year, 2007 itself by inserting Section-151A and 151B and in view of the aforesaid Sections, police has got every power to lodge FIR and investigate the offence. He further submitted that the Appellate Authority has got no power to quash the FIR or to give any findings in respect of the case instituted for commission of the theft and the Appellate Authority can pass order in respect of assessment only and, therefore, even if, the Appellate Authority has given any finding in respect of commission of the theft, the aforesaid finding is without jurisdiction. Learned counsel appearing for Board referred a decision of Bihar Electricity Board and Others Vs. Sri Bir Ispat reported in 1999(1) PLJR 466 . He also cited unreported decisions of another bench of this court which were passed on 04-07-2012 and 27-08-2010 in CWJC No. 9596 of 2008 and Letters Patent Appeal No. 365 of 2010 respectively. It is further contended by him that in Letters Patent Appeal No. 365 of 2010, the Division Bench of this court has held that the statement of the state of affairs made in inspection report carried out in presence of consumers and existence of such state of affairs cannot be challenged by the consumer. 12. Having heard the rival contentions of both the parties, I have gone through the record as well as decisions cited on behalf of the parties. 13. Admittedly, the premises of petitioners were raided by the officials of the Electric Department and according to officials of the Electric Department, the petitioners were illegally consuming electric energy by tampering with the meter and later on, criminal cases were lodged against the petitioners. 14. In Cr. Misc. 13. Admittedly, the premises of petitioners were raided by the officials of the Electric Department and according to officials of the Electric Department, the petitioners were illegally consuming electric energy by tampering with the meter and later on, criminal cases were lodged against the petitioners. 14. In Cr. Misc. No. 4613 of 2010, the petitioner challenged the assessment before the Appellate Authority and the Appellate Authority set aside the inspection report dated 18-08-2009 passing the order dated 10-02-2010 in Appeal No. 02 of 2009 and also observed that the petitioner in Cr. Misc. No. 4613 of 2010 has not committed offence u/S 135/138 of the Act. Admittedly, the above-said order of the Appellate Authority was passed u/S 127 of the Electricity Act, 2010 in which, any aggrieved person can challenge the final assessment made u/S 126 of the Electricity Act, 2003. Furthermore, it is clear from perusal of Section-135 of Electricity Act that the aforesaid section does not provide for assessment and the assessment is made u/S 126 of the Act. Therefore, it is clear from perusal of provisions of Sections-126, 127 & 135 of the Electricity Act that under Sections-126 & 127 of the Act, the liability is determined in quashi judicial proceeding by assessing the damage whereas; in Section-135, a Criminal case is lodged for commission of Electricity Theft. The determination made by the authorities u/S 126 and 127 of the Act in quashi judicial proceeding is final but Section-154 of the Act says that the Special Court shall determine the civil liability against a consumer or person in terms of money for theft of energy and, if, a consumer deposits any amount in excess of the calculation as made by the Special Court, the same shall be refunded alongwith interest. From perusal of Section-154 of the Electricity Act, it is obvious that the criminal court has got jurisdiction to give final verdict in respect of the assessment and the finding of the criminal court would supersede the findings of the authorities under the Board. Therefore, even if, the appellate authority set aside the inspection report u/S 127 of the Electricity Act, then also, the FIR for commission of theft cannot be quashed because the order passed u/S 127 of the Electricity Act, 2003 would ultimately, be determined by the Special Criminal Court in terms of Section-154(6) of the Act. 15. In Cr. Misc. Therefore, even if, the appellate authority set aside the inspection report u/S 127 of the Electricity Act, then also, the FIR for commission of theft cannot be quashed because the order passed u/S 127 of the Electricity Act, 2003 would ultimately, be determined by the Special Criminal Court in terms of Section-154(6) of the Act. 15. In Cr. Misc. No. 6696 of 2010, it appears that the petitioner in the aforesaid Criminal Miscellaneous case moved before the Appellate Authority u/S 127 of the Electricity Act and the Appellate Authority noticed that there was no inspection report to justify the proceeding u/S 126 of the Electricity Act and on the basis of aforesaid findings, the criminal case instituted by the Board was dropped against which, the Board has preferred a quashing application u/S 482 of the Cr.P.C. which is still pending for adjudication and, therefore, in my view, Cr Misc. No. 6696 of 2010 is not maintainable because no criminal case is pending against the petitioner in Cr. Misc. No. 6696 of 2010. 16. So far as violation of Supply Code, 2007 is concerned, it is not proper stage to quash the criminal prosecution on the ground of violation of Service Code, 2007 because it would be decided in course of trial as to whether any violation of Service Code, 2007 has been made or not. 17. On the basis of aforesaid discussions, I am of the opinion that all the above-said petitions do not have any merit and must be dismissed on admission stage itself. 18. Accordingly, all the above-said four petitions stand dismissed on admission stage itself.