Allahabad High Court
Asharaf Ali vs State Of U.P. And Others on 23 March, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 64 Case :- APPLICATION U/S 482 No. - 8171 of 2023 Applicant :- Asharaf Ali Opposite Party :- State of U.P. and others Counsel for Applicant :- Umesh Prasad Singh, Satyendra Narayan Singh Counsel for Opposite Party :- G.A., Baleshwar Chaturvedi Hon'ble J.J. Munir,J.
Heard Mr. Satyendra Narayan Singh, learned Counsel for the applicant and Mr. Mata Prasad, Advocate holding brief of Mr. Baleshwar Chaturvedi, learned Counsel appearing for respondents nos. 3 and 4 and Mr. D.K. Srivastava, learned A.G.A. appearing on behalf of the State.
2. This application has been filed, seeking to quash the proceedings in Criminal Case No. 142 of 2005, State v. Ashraf Ali, under Section 135 of the Electricity Act, 2003 (''the Act of 2003' for short), Police Station Khandauli, District Agra, pending in the Court of the Special Judge (E.C. Act), Agra.
3. The applicant has been reported to the Police through a first information report dated 10.08.2005 by the Junior Engineer, Enforcement Squad, Power Distribution Corporation, who, along with the Executive Engineer and a team of police officers, acting on an information, went over to the premises of a certain M/s. Aftab Ice Factory owned by the applicant Asharaf Ali. The information, on which the enforcement team proceeded, was about theft of electricity by the applicant. A checking of the premises followed, which led to the discovery of a direct line drawn from the 100 KVA transformer to the low-tension line, for the purpose of energizing the ice factory. The team found an effective illegally connected load of 74 H.P. and corresponding theft being committed by the applicant. The applicant is said to have moved away, feigning that he would produce papers. The cable was removed and taken into custody. The members of the public, who were offered to stand witness, declined to do so, citing reasons eschewing enmity.
4. Learned counsel for the applicant has argued that the time when the offence was committed and the crime registered on the basis of which the impugned charge sheet has been filed, that is to say, on 10.08.2005, the offence under Section 135 of the Act of 2003 was not a cognizable offence and only a complaint could be filed. It is argued by the learned counsel for the applicant that the applicant had filed Criminal Misc. Writ Petition No. 10415 of 2005, challenging the FIR that was registered against him. It was connected to a bunch of writ petitions, where the common issue involved was if an FIR could at all be registered for an offence punishable under Section 135 of the Act of 2003, the offence being not cognizable as the Act then stood. The applicant was granted interim stay of arrest vide order dated 06.10.2005. The aforesaid writ petitions came to be heard and decided by a Division Bench of this Court on 15.09.2006 in Mustaq alias Mustafa v. State of U.P. and others, 2006 SCC OnLine All 1430 : (2006) 6 All LJ 257. The following directions were issued :
42. According to us, out of three directions the third one is edging over the others. We cannot dismiss the writ petitions since under this judicial pronouncement we have to hold about legality or validity of declaring theft of electricity non-cognizable offence. If we quash the proceeding, we shall arrive at the same result. Moreover, we are not recommending the police to arrest directly irrespective of taking cognizance by the Court. But if we postpone the arrest and allow the authorities including police to obtain leave or permission for investigation from the Court of competent jurisdiction then the purpose will be subserved.
43. Lot of submissions are made about applicability of Rule 12 of the Electricity Rules, 2005. It is further submitted that there is no provision of making such Rule of investigation and arrest by the police. We have seen the rule making power under S. 176 of the Act. Section 176 gives power to the Central Government to make the rule whereunder we find that some of the rule are specifically made without prejudice to the generality of the rule making power. Therefore, such power exists even under the general rule making power. According to us, question is not the making of such rule but making its effectivity with the true spirit of the Act. The Act, 2003 provides certain offences punishable in accordance with law. One of such offence is theft of electricity under Section 135 of the Act. Section 135 of the Act does not preclude applicability of Cr. P.C. absolutely. Rule 12 of the Rules is speaking directly on the issue. But according to us, there is a direct conflict between such rule and Section 151 of the Act. Had it been the case that Section 151 is exercisable, we could have given thought in respect of the question/s raised by the petitioners, but now when the Bill has been presented proposing amendment of such section by converting non-cognizable offence to cognizable offence, we should not interfere with it. We can only keep the applicability of both Section 151 of the Act and Rule 12 of the Rules in abeyance till the amendment actually takes place. Naturally the question will arise how the law will take effect? It can take effect by applying the provision of S. 175 of the Act. Such section has made the entire Electricity Act, 2003 as a supplementary law in addition to and not in derogation to any other law for the time being in force. "Derogation" means the act of annulling or breaking a law, or some part of it as per Law Lexicon 1997 Edition. Therefore, when by such Section the Electricity Act, 2003 does not propose to break or annul the existing law, Cr. P.C. can act as a filler to meet the need or necessity. Now the question would be what is the need? The need is taking cognizance by the Court as regards non-cognizable offences and giving an appropriate direction to the police to do the needful. Section 155 of the Cr. P.C. is clear to that extent as given hereunder:
"155. Information as to non-cognizable cases and investigation of such cases.-- (1) when information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.
44. However, from the aforesaid discussions the following inferences are drawn:
(a) Theft of electricity is social crime;
(b) electricity is saleable commodity per unit but not unsaleable abstract energy and supply of uninterrupted electricity to the citizens is essential service of the State, therefore, theft of electricity should be treated as cognizable offence;
(c) persons involved in theft of electricity do not necessarily mean the illegal user alone but persons adding or abating the theft either within or outside the department;
(d) objects and reasons, list of offences and Sections 135,151 and if necessary other sections of the Act, 2003 should be harmoniously construed;
(e) Section 151 and the word "non-cognizable" under the list of offences under the Act can be deleted to have more effective applicability;
(f) by virtue of Section 175 of the Act, 2003, the Act is supplemental to the general law, therefor, there is no bar to the applicability of Cr. P.C.
(g) "Electricity" being item No. 38 of the List III -- concurrent list of the Seventh Schedule of the Constitution of India, both Central and State have every right to form Special Task Force to entrust the duty at an appropriate circumstance especially in case of doubt about failure or connivance of the police with miscreants.
45. With the above inferences following order is passed hereunder: Both the existing Section 151 of the Electricity Act, 2003 and Rule 12 of the Electricity Rules, 2005 shall be kept in abeyance and can be made applicable when amendment of the Electricity Act, 2003 will actually take effect. The word "cognizance" under the Rule 12 of the Electricity Rules, 2005 will be read as "action". Since theft of electricity is declared as social crime and saleable commodity, there is no bar under Cr. P.C. to take care of the offences temporarily till its amendment by virtue of Section 175 of the Act. Necessary applications can be made by the appropriate authority and/or by the police to the Court of competent jurisdiction to obtain leave and/or permission for necessary investigation of the individual cases. After obtaining such leave/permission there will be no bar for them to investigate and/or arrest an offender or offenders. The arrest of the petitioners is stayed for a period of one month or till after order of the Court of competent jurisdiction to investigate the matter, whichever is earlier.
46. Thus, the writ petition stands disposed of. No order is passed as to costs."
5. It is argued by the learned counsel for the applicant that the Police submitted a charge-sheet and the Special Judge unmindful of the directions issued by the Division Bench, took cognizance and issued process. Therefore, the orders issuing process in this case are in violation of the directions of the Division Bench of this Court, where without seeking permission of the competent Court, the Police had filed a charge-sheet against the applicant.
6. The aforesaid plea has been contested by Mr. Mata Prasad, Advocate holding brief of Mr. Baleshwar Chaturvedi, learned counsel for respondents nos. 3 and 4 and Mr. D.K. Srivastava, learned A.G.A. appearing on behalf of the State.
7. It is argued that in view of the subsequent amendment of the provisions of Section 151 of the Act of 2003 vide Act No. 26 of 2007 and the decision of the Supreme Court in Union of India vs. Mustaq alias Mustafa and others, (2016) 13 SCC 398 the said ground is no longer tenable.
8. The Act of 2003 was amended vide Act No. 26 of 2007 inserting the first proviso to Section 151 of the Act of 2003. By the said amendment, the offence under Section 135 was made a cognizable offence of which the Court could take cognizance upon a Police report filed under Section 173 (2) of the Code of Criminal Procedure, 1973. In Assistant Electrical Engineer v. Satyendra Rai and another, (2014) 4 SCC 513, the Supreme Court reversed a judgment of the Patna High Court, holding that the Court could not take cognizance of an offence of electricity theft on a Police report, but on a complaint alone in writing by the appropriate Government. The said view was held untenable. In the Patna case, the offence had been committed on 24.01.2007 and the Amending Act No. 26 of 2007 making the offence cognizable came into force with effect from 15.06.2007. Therefore, it was argued before their Lordships of the Supreme Court in Satyendra Rai (supra) that the amendment made vide Act No. 26 of 2007 would not apply to the writ petitioners' case. There, the offence was committed prior to insertion of the first proviso to Section 151 of the Act of 2003 by the Amending Act of 2007. The aforesaid contention was repelled by the Supreme Court holding:
8. Mr Mohit Kumar Shah, learned counsel appearing for the appellant invites our attention to the present Section 151 of the Act and more particularly to the proviso which has been added by way of an amendment. This proviso came by way of Act 26 of 2007 and reads as under:
"Provided that the court may also take cognizance of an offence punishable under this Act upon a report of a 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."
Therefore, ordinarily, there is no difficulty now in the way of the police to investigate as also to prosecute the accused if it is found that the accused has committed the offence. However, this proviso seems to have come only w.e.f. 15-6-2007, whereas the offence complained of in the present case is stated to have taken place on 24-1-2007. Therefore, it is argued by the learned counsel for the respondent that the proviso could apply only if the offence is committed and reported after 15-6-2007.
9. We, however, do not agree as the learned counsel appearing for the appellant has also pointed out and invited our attention to the Statement of Objects and Reasons of the Act by which the amendment has come and further by which the proviso is added. Para 4 of the Statement of Objects and Reasons reads as under:
"4. As per the provisions contained in Section 151 of the Act, the offences relating to theft of electricity, electric lines and interference with metres are cognizable offences. Concerns have been expressed that the present formulation of Section 151 stands as a barrier to investigation of these cognizable offences by the police. It is proposed to amend Section 151 so as to clarify the position that the police would be able to investigate the cognizable offences under the Act. To expedite the trial before the Special Courts, it is also proposed to provide that a Special Court shall be competent to take cognizance of an offence without the accused being committed to it for trial."
(emphasis supplied) Therefore, considering the language of Para 4 of the Statement of Objects and Reasons, it is clear that the amendment brought in is clarificatory in nature and as such it would take into its ambit even the pending matters and in that sense it would be a retrospective amendment.
10. There is one more reason why the High Court's order [Satyendra Rai v. State of Bihar, Criminal Misc. No. 19178 of 2007, order dated 28-5-2009 (Pat)] can be faulted. The High Court has clearly ignored the First Schedule of CrPC and more particularly the second part thereof which is under the head "Classification of offences against other laws". The second entry reads as follows:
"If punishable with imprisonment for three years and upwards but not more than seven years, then such offences are held to be cognizable, non-bailable and triable by the Court of the Magistrate of the First Class."
11. Therefore, the High Court ought to have considered this provision which makes the first information report acceptable by the police in the sense that the police could investigate into the matter and if found guilty could have also filed a report under Section 173 CrPC before the court on which the court could have taken the cognizance of the offence."
9. Later on, the issue again came up before the Supreme Court in an appeal from the judgment of the High Court of Chhatisgarh in Vishal Agarwal and another vs. Chhatisgarh Electricity Board and another, (2014) 3 SCC 696. Following the decision in Satyendra Rai, it was held in Vishal Agarwal (supra) by the Supreme Court that the amendment to Section 151 is clarificatory in nature and action could be taken on complaints that were pending before the Amending Act of 2007 came into force, treating them to be cognizable cases. In paragraph no. 17 of the report in Vishal Agarwal, it was held :
17. In view of the aforesaid judgment of this Court in Satyendra Rai case [Asstt. Electrical Engineer v. Satyendra Rai, (2014) 4 SCC 513 : (2012) 1 PLJR 476 (SC)], conclusively holding that amendment to Section 151 is clarificatory in nature and further that notwithstanding the provisions of Section 151 of the Act, an FIR could be filed with the police, the matter stands clinched in favour of the Board. However, at the same time we would like to elaborate the view taken by this Court in the aforesaid judgment.
10. Thus, by the time, the challenge to the decision of the Division Bench of this Court in Mustaq (supra) came up before the Supreme Court in Mustaq alias Mustafa (supra), the principle was already well settled. Accordingly, the directions protecting the writ petitioners in Mustaq on the ground that the cases had been registered at a time when the Amending Act of 2007 had not yet come into force, were all vacated by the Supreme Court in Mustaq alias Mustafa. It was held :
2. The High Court has observed as follows: (Mustaq case [Mustaq v. State of U.P., 2006 SCC OnLine All 1430 : (2006) 6 All LJ 257] , SCC OnLine All para 43) "43. ... The 2003 Act provides certain offences punishable in accordance with law. One of such offence is theft of electricity under Section 135 of the Act. Section 135 of the Act does not preclude applicability of CrPC absolutely. Rule 12 of the Rules is speaking directly on the issue. But according to us, there is a direct conflict between such rule and Section 151 of the Act. Had it been the case that Section 151 is exercisable, we could have given thought in respect of the question(s) raised by the petitioners, but now when the Bill has been presented proposing amendment of such section by converting non-cognizable offence to cognizable offence, we should not interfere with it. We can only keep the applicability of both Section 151 of the Act and Rule 12 of the Rules in abeyance till the amendment actually takes place."
(emphasis supplied)
3. The learned Additional Solicitor General has pointed out a decision of this Court in Electrical Engineer v. Satyendra Rai [Electrical Engineer v. Satyendra Rai, (2014) 4 SCC 513] , wherein this Court has specifically held in para 9 as follows: (SCC p. 516) "9. ... Therefore, considering the language of Para 4 of the Statement of Objects and Reasons, it is clear that the amendment brought in is clarificatory in nature and as such, it would take into its ambit even the pending matters and in that sense, it would be a retrospective amendment."
To that extent, the other decision of this Court in Vishal Agrawal v. Chhattisgarh SEB [Vishal Agrawal v. Chhattisgarh SEB, (2014) 3 SCC 696 : (2014) 4 SCC (Cri) 674] also plays the same role.
4. In view of the above-cited decisions of this Court, wherein it has been specifically stated that it is clear from the language of Para 4 of the Statement of Objects and Reasons that the amendment brought in is clarificatory in nature and as such it would be a retrospective amendment, we hold that the impugned order [Mustaq v. State of U.P., 2006 SCC OnLine All 1430 : (2006) 6 All LJ 257] passed by the High Court cannot be given effect to and is hereby set aside and direct that the orders passed by this Court, which we have cited hereinabove, be followed.
11. In the aforesaid conspectus of facts, it is no longer open to the learned counsel for the applicant to argue that the learned Special Judge could not take cognizance of the case on the basis of a Police report filed against the applicant. The judgment of the Division Bench in Mustaq would not at all come to the applicant's rescue. The said judgment has been set aside by the Supreme Court in Mustaq alias Mustafa. Also, the Supreme Court has held the amendment makes the offence punishable under Section 135 of the Act of 2003 cognizable by virtue of the amendment to Section 151 of the Act of 2003 and has done so retrospectively. The reasoning there is that the amendment is clarificatory, and therefore, retrospective.
12. Be that as it may, the law has now been finally settled that in respect of an FIR or complaint pending prior to the date of the amendment, the amended provisions brought vide Act No. 26 of 2007 would apply with retrospective effect and not prospectively. Here, the amendment came into force with effect from 15.06.2007 and the offence was committed on 10.08.2005, but, that would not be a ground, as Mr. S.N. Singh wants, to quash the impugned proceedings, in view of the consistent holding of the Supreme Court that the amendment is retrospective, making the offence under Section 135 of the Act of 2003 cognizable.
13. No other point was pressed.
14. This application stands rejected.
15. It goes without saying that this order shall not adversely affect the applicant's right, if so advised, to move for discharge at the appropriate stage.
Order Date :- March 23, 2023 I. Batabyal/Deepak (J.J. Munir, J.)