ADITYA KUMAR TRIVEDI, J.:–Taking into account the question involved at an earlier occasion there was direction for analogous hearing of Cr.W.J.C. No. 23/2006 as well as the present Cr.W.J.C. No. 269/2008 but as the learned counsel for the Vigilance conceded over application of ratio decided by the Division Bench of our own High Court reported in 2011 (1) PLJR 1064 , hence Cr. Writ No. 23/06 was allowed in terms thereof (whole brief has been filed by way of supplementary affidavit). 2. As the learned counsel for the Vigilance submitted that the ratio decided by the aforesaid Division Bench is not applicable so far present writ is concerned. Hence, there has been full-fledged hearing of instant writ petition. 3. Petitioners, who happen to accused of Vigilance P.S. Case No.21/03 leading to registration of Special Case No.15/03 registered under Section 120B, 201, 379 IPC read with Section 7, 13(1) (C)(D) (i) (ii), 13 (2) of the P.C. Act, 39, 44 of Indian Electricity Act has prayed for quashing of the same. 4. Prem Kumar Singh an Electrical Engineer who was one of the members of Vigilance filed a written report disclosing therein that there has been theft of electricity by Balmukund Concast Limited, Bihta, Patna and on account thereof the Electricity Department has incurred loss of Rs.7,63,13,272.46/- in connivance with other Electricity Department officials whose name stood figured. 5. Manifold argument has been raised on behalf of the petitioner in support of their contention. The first and foremost argument happens to be that after Division Bench decision of our own High Court as reported in 2011 (1) PLJR 1064 it has specifically been held that after repealing of old Act and substituted by Electricity Act, 2003, Vigilance has got no right to institute a case for electric theft. Hence, the institution of present case on the basis of written report submitted by one of the members of the Vigilance Committee and its continuance, if so, permitted, will be in utter disregard of the finding concluded and held by the Division Bench. Apart from this, it has further been submitted that the present Act of 2003 has introduced and distinguished the Act of unauthorized use as well as stealing the electric energy. Apart from this, it has further been submitted that the present Act of 2003 has introduced and distinguished the Act of unauthorized use as well as stealing the electric energy. Stealing of electric energy will be presumed only on the basis of dishonest consumption of electric energy availed by those illegal means which has been classified under Section 135 of the Electricity Act. Otherwise, it will come and will be covered under the heading of unauthorized consumption as prescribed under Section 126 of the Electricity Act 2003 and for that different procedure has been prescribed under Sections 126, 127 of the Electricity Act to realize the amount along with penalty incurred thereupon. Further submitted that from the written report it is evident that none of the ingredients so prescribed under Section 135 of the Electricity Act, 2003 is visible and therefore, no prosecution is liable to be proceeded with. Further submitted that when there happens to be special case covering the particular area then under such situation that Special Act will prevail upon the other Act. Consequent thereupon the practice and procedure so prescribed under the Special Act has to be followed while dealing with the issue. As such, the Electricity Department could not escape to follow the procedure prescribed under Electricity Act, 2003. Also relied upon decisions reported in 1. 1971 SC 520, 2. 1984 (2) SCC 500 , 3. 2011 (3) PLJR 1 , 4. 2012 (1) PLJR 476, 5. Bihar Local Law, Vol-13, 6. Spectrum of CBI, 7. Electricty Act, 8. P.C. Act & Electricity Tarrif & Cr.P.C. 9. 1961 SC 1170, 10. 1988 SC 912, 11. 2011 (1) PLJR 1064 , 12. 2007 (12) SCC 1 , 13. 1998 (5) SCC 749 , 14. 2008 (6) SCC 1 , 15. 2011 (3) SCC 1 , 16. 2011 (10) SCC 357 , 17. 2011 (10) SCC 610, 18. 2010 (13) 334, 19. 1982 (1) SCC 561 , 20. P.C. Act, 21. Electricity Act, 22. 1961 SC-1176, 23.1988 SC 912, 24. 2011 (1) PLJR 1064 , 25. 2007 (12) SCC 1 , 26. 1998 (5) SCC 749 . 6. Learned counsel for the State as well as learned counsel for Electricity Department fairly contended that the ratio decided by the Division Bench as referred above is applicable in this case. Hence, the FIR instituted by Vigilance is liable to be quashed. 7. 2007 (12) SCC 1 , 26. 1998 (5) SCC 749 . 6. Learned counsel for the State as well as learned counsel for Electricity Department fairly contended that the ratio decided by the Division Bench as referred above is applicable in this case. Hence, the FIR instituted by Vigilance is liable to be quashed. 7. Though at initial stage learned counsel for the Vigilance refuted the argument raised on behalf of petitioners as well as State Electricity Department submitted that under old Electricity Act as per Notification Vigilance was vested with power to register a case relating to electric theft. After repealing of old Act and substituted by Electricity Act, 2003 no office order has been issued in this regard, therefore as per Section 185 of the Electricity Act, 2003, the old Notification will survive and in the aforesaid background, the institution of the case followed with investigation is justified. However, at the fag end of the argument, fairly submitted that when the Department is itself conceding with the ratio decided by the Division Bench as referred above, it has nothing to say. 8. There is no dispute with regard to vesting of power to the Vigilance vide Notification dated 6th June 1973, in continuity with Notification dated 2nd July 1992 to register and investigate the case relating to electric theft apart from others in pursuance of the then existing Indian Electricity Act, 1910 along with its ancillary law. After repealing of aforesaid Act and substituted by Electricity Act, 2003, the power for institution of the case has been identified which could be seen under Section 151 of the Act which reads as follows:– “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: [Provided that the Court may also take cognizance of an offence punishable under this Act upon a report of police officer filed under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974): Provided further that a Special Court constituted under Section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial] ” 9. Certainly, the Vigilance did not find place. Uptil now, neither the Electricity Department nor the Vigilance has been able to place the relevant Notification on this score identifying the Vigilance also as one prosecuting agency under new Act . At this juncture, it would be proper to see applicability of Section 185 of the Electricity Act, 2003 whether the previous Notification issued under Indian Electricity Act, 1910 entrusting the Vigilance to register and investigate the case relating to electric theft will survive or not and for that Section 185 (2) (a) could be referred to “Section 185 (2) (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 license, permission, authorization or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act” 10. That means to say there will be enforcement of such Rule, Notification, Inspection, Order or Notice if the same is found to be not inconsistent with the present Act. As referred above, Section 151 of the Act did not identify presence of Vigilance. Consequent thereupon, the power so exercised by the Vigilance in pursuance of the Notification as referred above certainly happens to be inconsistent. 11. The aforesaid theme has been taken into consideration under the Division Bench decision and under paragraph 53 the same has been properly answered:– “There is no doubt that the Electricity Vigilance was created to take care of the corruption cases and the authorization was there for Vigilance also to take care of the electricity theft under the 1910 Act, but the Vigilance has failed to produce any notification whereby the Vigilance was authorized to take care of the electricity theft cases under 2003 Act, as Section 135 of the Electricity Act and Clause 11 of the Supply Code are a complete Code for dealing with Electricity theft. It is made clear that in the Electricity Act, 1910 there was no provision similar to Section 135 (1-A), which specifically authorizes the Officers authorized by the supplier/licensee to lodge the complaint. Hence, the aforesaid notification, in no way, helps the Vigilance. It is made clear that in the Electricity Act, 1910 there was no provision similar to Section 135 (1-A), which specifically authorizes the Officers authorized by the supplier/licensee to lodge the complaint. Hence, the aforesaid notification, in no way, helps the Vigilance. It is true that vide Notification dated 6 June, 1993, the Vigilance P.S. was created for registration of corruption cases. Hence, the Vigilance has the power to register cases restricted to the corruption matters but in the present case, the theft and unauthorized consumption of electricity are the basis of registration of the two F.I.Rs., which is impermissible in view of specific provisions under the Electricity Act, 2003 and Bihar Electricity Supply Code, 2007.” 12. Now the second question roams whether Vigilance is authorized after promulgation of Electricity Act, 2003 to enter into the premise and inspect and for that it looks better to refer Sub-section 2 of Section 135 of the Electricity Act, 2003 which runs as follows:– “(2) [ Any officer of the licensee or supplier as the case may be, authorized] 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 unauthorizedly; (b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which [has been or is being] used for unauthorized 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 therefrom in his presence. ” 13. Again this does not enlist the Vigilance to inspect. Neither the Vigilance nor the Department has been able to place relevant Notification entrusting the Vigilance to enter, inspect the premises, meters and register a case. The aforesaid issue has been taken into account under para-45 of the Judgment which runs as follows:– “Thus, from the aforesaid facts it appears that neither the inspection was done by the person, who was authorized to make inspection nor the F.I.R., was lodged by the person authorized to do the same. The aforesaid issue has been taken into account under para-45 of the Judgment which runs as follows:– “Thus, from the aforesaid facts it appears that neither the inspection was done by the person, who was authorized to make inspection nor the F.I.R., was lodged by the person authorized to do the same. Since the Assistant Engineer and an Officer ranking above him in the Electricity Department was authorized to make inspection or to lodge an F.I.R., hence, the inspection by the Vigilance was absolutely without jurisdiction as the principle is well established which flows from a Latin maxim expression, “Unius Est Exclusio Alterius”. This legal principle is evident from the judgment of the Apex court in the case of Hukumchand Shyam Lal Vs. Union of India and Others reported in AIR 1976 SC 789 paragraph no.18 which reads as follows:- “It is well settled that where a power is required to be exercised by certain authority in a certain way, it should be exercised in that manner or not at all and all other modes of performance are necessarily forbidden…..”. Hence, in this context, the making of the inspection or lodging of the F.I.R. in a suspected case of theft by Vigilance is not permissible, and more so, when the Electricity Act, 2003 being a Special Act provides the provision under Section 135 for detection of the electricity theft and punishment coupled with Clause 11 of the Supply Code, 2007, then in the light of the same the Vigilance cannot usurp that power.” 14. In what circumstances theft of electricity is to be considered has properly been categorized under Sub-section 1 of Section 135 of the Electricity Act and those are:– “135. In what circumstances theft of electricity is to be considered has properly been categorized under Sub-section 1 of Section 135 of the Electricity Act and those are:– “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 supplier, as the case may be; 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 an 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; or (d) uses electricity through a tampered meter; or (e) uses electricity for the purpose other than for which the usage of electricity was authorized,” 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) 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 sentence shall be imprisonment for a term 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 in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station: Provided also that if it is proved that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, 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. (1-A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity: Provided that only such officer of the licensee or supplier, as authorized for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorized shall disconnect the supply line of electricity: Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty-four hours from the time of such disconnection: Provided also that the licensee or supplier, as the case maybe, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment.]” 15. In a decision reported in 2012 (2) SCC 108 distinction between 126 and 135 of the Act has been laid down by the Hon’ble Apex Court and relevant paragraphs are:– 25. Section 135 of the 2003 Act falls under Part XIV relating to “offences and penalties” and title of the section is “theft of electricity”. The section opens with the words “whoever, dishonestly” does any or all of the acts specified under clauses (a) to (e) of sub-section (1) of Section 135 of the 2003 Act so as to abstract or consume or use electricity shall be punishable for imprisonment for a term which may extend to three years or with fine or with both. Besides imposition of punishment as specified under these provisions or the proviso thereto, sub-section (1-A) of Section 135 of the 2003 Act provides that without prejudice to the provisions of the 2003 Act, the licensee or supplier, as the case may be, through officer or rank authorized in this behalf by the appropriate commission, may immediately disconnect the supply of electricity and even take other measures enumerated under sub-section (2) to (4) of the said section. The fine which may be imposed under Section 135 of the 2003 Act is directly proportional to the number of convictions and is also dependent on the extent of load abstracted. 26. In contradistinction to these provisions, Section 126 of the 2003 Act would be applicable to the cases where there is no theft of electricity but the electricity is being consumed in violation of the terms and conditions of supply leading to malpractices which may squarely fall within the expression “unauthorized use of electricity”. This assessment/proceedings would commence with the inspection of the premises by an assessing officer and recording of a finding that such consumer is indulging in an “unauthorized use of electricity”. Then the assessing officer shall provisionally assess, to the best of his judgment the electricity charges payable by such consumer, as well as pass a provisional assessment order in terms of Section 126(2) of the 2003 Act. 28. Section 135 of the 2003 Act deals with an offence of theft of electricity and the penalty that can be imposed for such theft. This squarely falls within the dimensions of criminal jurisprudence and mens rea is one of the relevant factors for finding a case of theft. On the contrary, Section 126 of the 2003 Act does not speak of any criminal intendment and is primarily an action and remedy available under the civil law. It does not have features or elements which are traceable to the criminal concept of mens rea. 29. Thus, it would be clear that the expression “unauthorized use of electricity” under Section 126 of the 2003 Act deals with cases of unauthorized use, even in the absence of intention. These cases would certainly be different from cases where there is dishonest abstraction of electricity by any of the methods enlisted under Section 135 of the 2003 Act. A clear example would be, where a consumer has used excessive load as against the installed load simpliciter and there is violation of the terms and conditions of supply, then, the case would fall under Section 126 of the 2003 Act. A clear example would be, where a consumer has used excessive load as against the installed load simpliciter and there is violation of the terms and conditions of supply, then, the case would fall under Section 126 of the 2003 Act. On the other hand, where a consumer, by any of the means and methods as specified under Sections 135(a) to 135(e) of the 2003 Act, has abstracted energy with dishonest intention and without authorization, like providing for a direct connection by passing the installed meter, the case would fall under Section 135 of the Act. 30. Therefore, there is a clear distinction between the cases that would fall under Section 126 of the 2003 Act on the one hand and Section 135 of the 2003 Act on the other. There is no commonality between them in law. They operate in different and distinct fields. The assessing officer has been vested with the powers to pass provisional and final order of assessment in cases of unauthorized use of electricity and cases of consumption of electricity beyond contracted load will squarely fall under such power. The legislative intention is to cover the cases of malpractices and unauthorized use of electricity and then theft which is governed by the provisions of Section 135 of the 2003 Act. 31. Section 135 of the 2003 Act significantly uses the words “whoever, dishonestly” does any of the listed actions so as to abstract or consume electricity would be punished in accordance with the provisions of the 2003 Act. “Dishonestly” is a state of mind which has to be shown to exist before a person can be punished under the provisions of that section. 32. The word “dishonest” in normal parlance means “wanting in honesty”. A person can be said to have “dishonest intention” if in taking the property it is his intention to cause gain, by unlawful means, of the property to which the person so gaining is not legally entitled or to cause loss, by wrongful means, of property to which the person so losing is legally entitled. “Dishonestly” is an expression which has been explained by the courts in terms of Section 24 of the Penal Code, 1860 as: “24. Dishonestly.–Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing ‘dishonestly’. 33. This Court in S. Dutt Vs. “Dishonestly” is an expression which has been explained by the courts in terms of Section 24 of the Penal Code, 1860 as: “24. Dishonestly.–Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing ‘dishonestly’. 33. This Court in S. Dutt Vs. State of U.P. stated that a person who does anything with the intention to cause wrongful gain to one person or wrongful loss to another is said to do that dishonestly. 16. After perusal of written report, it is evident that prosecution has not suggested mode of theft of electricity by any means so identified under Sub-clause-1 of Section 135 of the Electricity Act rather it speaks regarding consumption of electric energy more than sanction one. 17. Thus, after analyzing and scrutinizing relevant factual aspect coupled with relevant legal aspect as now so emerges after enforcement of Electricity Act, 2003, the allegations so levelled by the Vigilance appears to be non maintainable. Consequent thereupon, Vigilance P.S. Case No.21 of 2003 arising out of Special Case No.15/2003 is hereby quashed. 18. Petition is allowed. 19. However, it will be open to the Department to proceed in accordance with Section 126 of the Electricity Act, 2003 if it so desires.