Patna High Court
Jainendra Kumar Singh vs The Bihar State Electricity Bo on 5 February, 2014
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ No.654 of 2012
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1. Jainendra Kumar Singh@Jainendra Singh S/O Late Jagat Keshri Prasad Naraiyan
Singh, R/O Vill +Post- Bibhutipur, P.S. Bibhutipur, Distt- Samastipur
.... .... Petitioner
Versus
1. The Bihar State Electricity Board, Patna.
2. Shri Satya Narayan Mehta, Electrical Executive Engineer, Electric Supply
Division, Rosera Distt, Samastipur.
3. Sushree Manisha, Assistant Electrical Engineer, Electric Supply Sub-Division,
Rosera, Distt- Samastipur.
.... .... Respondents
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Appearance :
For the Petitioner : Mr. Manish Kumar, Adv.
For the BSEB : Mr. Vinay Kirti Singh, Adv.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 05-02-2014 Petitioner, Jainendra Kumar Singh@Jainendra Singh who has been arrayed as one of an accused of Bibhutipur P.S. Case No. 59 of 2012 registered under Section 135 of the Electricity Act, has prayed for quashing of the aforesaid FIR to the extent of his interest.
2. Sushree Manisha, an Assistant Electrical Engineer, Electric Supply Sub-Division, Rosera, Distt- Samastipur filed a written report on 19.03.2012 disclosing therein that on the same day, a raiding party was constituted comprising of Sri Satya Narayan Mehta, Executive Engineer, Sri Sunil Kumar Verma, C.O.- cum-Magistrate, Bibhutipur, she herself, Sri K.P. Singh, ASI, 2 Vibhutipur P.S., Sri Amarjit Paswan, Technician and conducted raid at the premises of different persons on getting information regarding stealthily consuming electric power and have shown conduction of raid in the house of Dilip Mahto and Naresh Sharma with regard to status of petitioner, it has been disclosed that after getting confidential information, they conducted raid at the establishment of M/s Vodafone Essar Space Tel Ltd., which happens to be established within the premise of petitioner, Jainendra Kumar Singh@Jainendra Singh and found consuming electric energy putting hook over service wire going to the house of petitioner. Respective seizure lists were prepared on having seizure of wire and accordingly, written report was submitted attracting institution of instant case.
3. It has been submitted on behalf of petitioner that from plain reading of the First Information Report, it is evident that it suffers from arbitrariness as well as malicious prosecution. To supprt the same, it has been submitted that from the written report itself, it is evident that no allegation has been levelled against the petitioner. Consumption of energy by Vodafone Essar Space Tel Ltd., was not from the house of the petitioner rather from the service line which was provided by the Electricity Department to the petitioner, which belongs to the Electricity Department and not to the petitioner. Not only this, the informant has not made the Vodafone Essar Space Tel 3 Ltd., as an accused although the prosecution itself identified consuming energy stealthily. Apart from this, by way of supplementary affidavit, it has also been submitted that Vodafone Essar Space Tel Ltd., happens to be consumer bearing Consumer No. 14752/CS-2/18 against 12 KV consumption. On account of dues over electric charge appertaining to Rs. 1,41,640/- line was disconnected from January 2011. Subsequently thereof, Vodafone Essar Space Tel Ltd., paid the outstanding dues on 09.05.2011 while the raid has been conducted on 19.03.2012. Furthermore, it has been submitted that the line was restored to Vodafone Essar Space Tel Ltd. In the aforesaid background, it has been submitted that after having deposited outstanding due on 09.05.2011 and conduction of raid as well as finding pilferage of electrical energy by the Vodafone Essar Space Tel Ltd., will come under unauthorized consumption governed by Section-126 of the Electricity Act and not a theft in terms of Section 125 of the Act. Moreover, the dual if any, must survive amongst prosecution as well as Vodafone Essar Space Tel Ltd., for which petitioner should not have been subject to infestation.
4. It has also been submitted that only to harass the petitioner, such kind of averment purposely as well as intentionally has been averred, otherwise the raiding party should have inspected the meter having affixed by the Department in the premise of 4 Vodafone Essar Space Tel Ltd., to see whether the aforesaid meter was in running condition or not, tampered or not, bypassed or not. Not only this, the informant intentionally kept silence with regard to the factual aspect whether Vodafone Essar Space Tel Ltd., was its customer or not and whether on account of non payment of outstanding electric charge, its line was disconnected, meter has been taken away or not, payment was done or not, line was restored or not, so that the factum of unauthorized consumption as well as theft of energy should have properly been distinguished.
5. It has also been submitted that the Bihar State Electricity Board by way of counter affidavit had admitted identification of Vodafone Essar Space Tel Ltd., to be its consumer and further on account of persisting outstanding dues the line was disconnected. Therefore, it has been pleaded that the instant FIR should not survive against petitioner who has got no concern at all save and except of being landlord.
6. On the other hand, the learned counsel representing Bihar State Electricity Board has submitted that petitioner has got no leg to stand. It has also been submitted that the petitioner has rightly been arrayed as an accused. To justify his contention, learned counsel for Bihar State Electricity Board drew attention toward the definition of consumer so defined under Bihar 5 Electricity Supply Code, 2007 2(K). Further referring Section 2 (gg) whereunder the occupier is defined, it has been submitted that because of the fact that the Vodafone Essar Space Tel Ltd., was tenant under the petitioner, therefore, he also happens to be constructively liable for the misdeeds whatever committed by his tenant. It has also been submitted that from factual aspect also, his connivance cannot be ruled out because of electric energy was stealthily being consumed by the Vodafone Essar Space Tel Ltd., after putting hook over the service line which was provided for connecting the petitioner's house and being the same visible by the naked eye, at least, petitioner should have informed the Department on account of offence being cognizable. It has also been submitted that prosecution could be quashed only in case when the allegation on its face does not make out a prima facie case. So far present FIR is concerned, from plain reading thereof, it is apparent that an allegation relating to cognizable offence is made out.
7. Then, it has been submitted that admittedly, Vodafone Essar Space Tel Ltd., was consumer but on account of outstanding dues, line was disconnected. Therefore, consuming the energy after disconnection amounts to theft attracting Section-135 of the Electricity Act. However, with regard to disclosure relating to payment of outstanding dues on 09.05.2011, no proper reply has been 6 given.
8. Having cursory perusal of the written report, it is evident that petitioner was not at all engaged in stealthily consuming the electricity. It is the own assertion of prosecution party that electric energy was being consumed stealthily by his tenant, Vodafone Essar Space Tel Ltd. It is also admitted fact that Vodafone Essar Space Tel Ltd., was consumer and on account of outstanding dues, its' line was disconnected. Petitioner by way supplementary affidavit averred regarding payment of outstanding dues on 09.05.2011 which has not been controverted, hence the same is also found duly acknowledgeable.
9. For the purpose of attracting Section-135 of the Electricity Act occupier/consumer has got no relevancy and for that, Section-135 of the Electricity Act is to be taken note of:-
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 7
(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) exceeds 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 than 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 8 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 may be, 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.] (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 unauthorisedly;
(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.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:9
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.
10. The Section begins "whoever" in its grammatical meaning as well as after going through Section-135 itself is not found circumscribed with the identity of consumer/occupier rather anybody whatever his status happens to be whose identity may be found engaged in stealthily consuming the electricity through the device so prescribed as well as acknowledged thereunder is liable to be prosecuted under Section-135 of the Electricity Act and on account thereof, attracting prosecution against the petitioner, a landlord for the wrong committed by his tenant even under the banner of contributory negligence cannot be found justified. In likewise manner, the presence of unauthorized consuming the energy or stealthily consuming energy whereunder dishonest intention has important role to play is not at all warranted against the petitioner because of the fact that the same would be applicable only relating to Vodafone Essar Space Tel Ltd., on account of being a consumer since before occurrence. Apart from this, on a plain reading of the written report itself, no offence under 10 Section 135 of the Electricity Act is made out against the petitioner because of the fact that his status itself is being acknowledged without having any sort of confusion at the level of the prosecution party during course thereof against the petitioner.
11. Thus, the prosecution of the petitioner suffers from ambiguity, illegality and arbitrariness as well as appears to be malicious prosecution and on account thereof, recognition of Bibhutipur P.S. Case No. 59 of 2012 with regard to petitioner, Jainendra Kumar Singh@Jainendra Singh is hewed.
12. Petition is allowed.
(Aditya Kumar Trivedi, J) Patna High Court February 5th 2014 Perwez/AFR __ |__| U |__| T