Allahabad High Court
Udaiveer Son Of Hari Singh vs State Of U.P. Through Principal ... on 21 February, 2007
Bench: Amar Saran, R.N. Misra
JUDGMENT
Amar Saran and R.N. Misra, JJ.
1. We have heard learned Counsel for the petitioners, Shri W.H. Khan and Shri Rajendra Kumar Mishra, learned Counsel appearing for U.P. Power Corporation Limited, Shri V.S. Mishra, learned Government Advocate assisted by Shri A.K. Sand, learned Additional Government Advocate.
2. Since all the above-mentioned writ petitions involve the same questions of fact and law, they have been heard together and are being disposed of by this common interim order. However, for convenience we are taking up writ petitions No. 15622 of 2006 (Udai Veer v. State of U.P. and Ors. 15687 of 2006 (Ram Cnandra Mishra v. State of U.P. and Ors.) and 1190 of 2007 (Parasu Ram Pandey v. State of U.P. and Ors.) as leading cases in which counter affidavits have been filed by the U.P. Power Corporation Limited or the State.
3. All the above-mentioned writ petitions have been filed challenging the registration of criminal cases against the petitioners inter alia under Section 135 of the Electricity Act, 2003 on the basis of first information reports essentially relating to the theft of electricity. It may be mentioned that by means of an earlier leading writ petition No. 10090 of 2005 Mustaq v. State of U.P. and Ors. reported in 2006(6) AU 257 which was connected with a large number of writ petitions, orders were passed by a Division Bench of this Court comprising Hon'ble Amitava Lala and Hon'ble Shiv Shankar, JJ. on 15.9.2006 disposing of the writ petitions with certain directions. It was held in the said decision that the offence of theft of electricity could not be made a cognizable offence with the aid of Rule 12 of the Electricity Rules, 2005 as the said offence was non-cognizable in view of Section 151 of the Electricity Act. However, as stealing of electricity was a social crime, which infringed the personal right of a citizen in all possible manner in espect of an essential service, causing suffering to honest consumers of electricity, hence till the Act was amended, the police officer or appropriate authority under the Electricity Act could make applications before the Magistrate under Section 155(2) of the Code of Criminal Procedure for investigating criminal cases against offenders. The Division Bench concluded its judgment with the following words:
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.
Thus, the writ petition stands disposed of.
To our dismay although the said judgment was delivered 5 months ago, we find that neither the police, nor the electricity department/ power corporation has taken any steps in furtherance of the said decision for obtaining permission from the competent Court for investigating cases against the accused, in blatant violation of the mandate of the earlier Division Bench to obtain the said permission within one month of the order.
4. This unpardonable laxity does lead this Court to wonder whether the department/ power corporation and the police are not hands in gloves or sympathetic to the thieves of electricity as they do not appear to be at all serious in bringing to book thousands of offenders involved in power thefts who have obtained stays of arrest on the technical plea that the offence is non-cognizable, when the answer to the problem was provided by the earlier division bench itself, viz. proceeding with the investigations and arrests after filing applications before the Court concerned under Section 155(2) Cr.P.C within a fixed time frame. Such negligence and inaction on part of the power corporation and the police has resulted in irreparable loss of revenue to the electricity department/ power corporation and immense suffering to honest consumers, who regularly pay their electricity dues and yet are denied regular and continuous supply of power which is largely due to power thefts.
5. In writ petition No. 15622 of 2006 preferred by Udaiveer, we had passed an order on 4.1.2007 after hearing various parties, which included Sri Ashok Nigam, learned Additional Solicitor General for Union of India, the learned Government Advocate for the State and Shri W.H. Khan and Shri Ranjit Saxena for U.P. Power Corporation to inform this Court as to what follow up measure have been taken in pursuance of the earlier order of the Division Bench comprising Hon'ble Amitava Lala and Hon'ble Shiv Shanker, JJ dated 15.9.2006. We had directed that the Central Government, State Government and U.P. Power Corporation act in a coordinated manner to give effect to the directions of the aforesaid Division Bench in writ petition No. 10090 of 2005 and that in the meantime the order passed in the said writ petition was to apply mutatis mutandi to this petition as well.
6. In writ petition No. 1190 of 2007 preferred by Parasu Ram Pandey, a supplementary counter affidavit has been filed by the Chief Engineer (Distribution) U.P.P.C.L on behalf of U.P. Electricity Power Corporation, which contains a letter dated 9.10.2006 written by the Superintending Engineer (Legal) Lucknow, addressed to the Managing Directors of various divisions of the U.P. Power Corporation asking them to comply with the order of the High Court.
7. Now it appears that in consequence of the correspondence of Shri W.H. Khan enquiring as to what steps have been taken by the Power Corporation in pursuance of the directions of the earlier Division Bench, another letter dated 17.2.2007 has been written by the Chief Engineer (Commercial) to the Managing Directors of all the divisions that the subordinate officers of their divisions have not given any compliance report to the U.P. Power Corporation Limited and that effective measure be taken in pursuance of the order of Allahabad High Court dated 15.9.2006 for lodging FIRs, effecting arrests and taking up other criminal proceedings after taking permission from the Courts concerned. The said permission could be taken by the Executive Engineer concerned or the police in appropriate cases.
8. Contrary to this circular, another counter affidavit has been filed by Shri Rajendra Kumar Mishra dated 14.2.2007, which contains a circular letter dated 13.2.2007 of the Director, Ministry of Power, Government of India, New Delhi addressed to the Managing Director, UPPCL, copies of which were also sent to Dr. Ashok Nigam, learned Additional Solicitor General of India and Shri Rajendra Kumar Mishra, Advocate, that in consultation with the Department of Legal Affairs a decision has been taken to file an SLP against the decision of the Division Bench of Allahabad High Court in writ petition No. 10090 of 2005. Also that the Electricity (Amendment) Bill 2005 seeking amendments to a few sections of the Electricity Act, 2003 (including Section 151) is said to be ready after its consideration by a Parliamentary Standing committee of energy and is likely to be presented before the House in the forthcoming budget session. Clause 4 of the Statement of Object and Reasons prepared on 20.12.2005 insofar as it is applicable to this case reads as follows:
4. As per the provisions contained in Section 151 of the Act, the offence relating to theft of electricity, electric lines and interference with meters are cognizable offences. Concems 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.
9. In writ petition No. 15687 of 2006 (Ram Chandra Mishra v. State of U.P and Ors.) a counter affidavit of Additional Superintendent of Police (Crime) DGP Headquarters, U.P., Lucknow dated 14.2.2007 has been filed by Shri A.K. Sand, learned Additional Government Advocate, which contains a reference to the minutes of a meeting of the Power Corporation dated 3.1.07 for giving effect to the orders of this Court in writ petition No. 10090 of 2005 for investigating the matters after taking permission of the concerned courts.
10. There is another letter of the Additional Director General (Public Grievance) dated 8.2.2007 which also seeks compliance of the order passed in writ petition No. 10090 of 2005, and the illegality of the police straight away registering FIRs and investigating these cases as the said offences have been held to be non-cognizable.
11. It would be incumbent on this Court to point out that this Court is extremely disappointed with the desultory compliance in calling offenders to book, who are engaged in theft of electricity even though the judgment of the Division Bench was pronounced on 15.9.2006 and five months have elapsed and the Union of India is still only thinking of filing an SLP against the said judgment. One wonders whether the Power Corporation, the State and Central governments are at all serious in checking thefts of electricity and in increasing the revenue earning from electricity so that there could be smooth and continuous supply of electricity to honest consumers. Likewise, only a hope is expressed that in all likelihood the amendment bill seeking amendment of the Electricity Act (2003) and the Rules framed thereunder shall be passed in the forthcoming budget session and that offences of power theft shall be made cognizable offences. In the same vein we also notice that no clear directions have been issued by the U.P. Power Corporation or its legal cell directing the Executive Engineers or subordinate officers concerned or by the DIG (Public Grievances), DGP Headquarters, Lucknow to the subordinate police officers about the steps needed and the manner in which applications are to be moved before the Courts concerned under Section 155(2) of the Code of Criminal Procedure for commencing investigation and for arresting the accused for offences under the Electricity Act.
12. We, therefore think it imperative to now issue a mandamus directing that that immediate measures be taken in the present cases as well as in all other cases relating to Section 135 of the Electricity Act and other related provisions, in which arrest were earlier stayed or are sought to be stayed, to immediately file applications before the Court concerned for investigations and arrests of the accused under Section 155(2) P.C within three weeks. The compliance report in all the cases mentioning details of all the cases relating to power thefts and the dates when the applications have been moved before the Courts concerned, the progress of investigations including arrests shall be submitted to this Court on or before 19.3.2007. The Court will take an extremely serious view in case of any non-compliance with this order and may be constrained to summon the Managing Director, (U.P. Power Corporation Limited) Lucknow, or the DIG (Public Grievances), DGP Headquarters, Lucknow and hold them answerable if it finds any laxity in compliance with this order.
13. The Registry is also directed to furnish the list of cases in which interim stays of arrests or other relief have been passed or which have been disposed of along with writ petition No. 10090 of 2005 on the next date of listing.
14. The Managing Director, U.P. Power Corporation Limited, Lucknow is also directed to furnish details of the amount and percentage of loss in revenue due to power theft and non-payments for power consumed on the next date of listing. On that date the State of U.P., Power Corporation and Union of India shall also apprise the Court about the progress made in having the Bill passed in Parliament amending the Electricity Act (2003) and the Rules framed for treating offences under the Electricity Act as cognizable and/ or moving the apex Court for challenging the decision of the earlier Division Bench in Cr. Misc Writ Petition No. 10090 of 2005, Mustaq v. State of U.P. and Ors. declaring offences under the Electricity Act as non-cognizable offences.
15. Till the date of moving of applications under Section 155(2) before the competent Court, the arrest of the petitioners shall remain stayed. The practice of moving applications under Section 155(2) Cr.P.C by the police or other competent authority before the concerned Court for investigating offences under the Electricity Act shall continue to be followed in all cases henceforth until there is an amendment in the Electricity Act treating the said offences as cognizable offences or an order is obtained from the apex Court staying the operation of the earlier Division Bench in criminal miscellaneous Writ No. 10090 of 2005 declaring offences under the Electricity Act to be non-cognizable offences.
16. List this case on 19.3.2007 for further orders.
17. Office is directed to communicate this order to the various parties within one week for necessary compliance.