Hari Nandan vs State Of U.P. And 2 Ors.
2014 Latest Caselaw 9356 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 

 
AFR
 
Court No.36
 
                     
 
               Criminal Misc. Writ Petition No.22824 of 2014
 
Hari Nandan            			     .................Petitioner
 
				versus     
 
State of U.P. and others		     ............Respondents
 
                                     
 
Hon'ble Rakesh Tiwari, J.

Hon'ble Mrs. Vijay Lakshmi, J.

(By Hon'ble Rakesh Tiwari, J)

Heard learned counsel for the parties and perused the record.

The petitioner has challenged the validity, propriety and legality of the first information report in case crime No.225 of 2014, under Section 138-B of Electricity Act registered at P.S. Binawar, District Budaun, whereas it has been alleged that a team of Assistant Engineer along with others visited the villages Sadullahpur Kitara, Chandaura, Bichharayya, etc. under the Police Station Binawar on 19.6.2014. The enforcement party found that 14 persons of aforesaid village had connected their electricity connections after the electricity department had earlier disconnected their electricity connections. As regard the petitioner is concerned, it is stated in the first information report thus:

" blds ckn xzke fcNj;k igqWpsA v'kksd dqekj ,[email protected] jkeiky cqd la0 [email protected] la0 024282 cdk;k 51540 cdk;k gfjuUnu ,[email protected] xaxk flg cad la0 [email protected] la0 050739 cdk;k 47752 cdk;k ?kjsyw eksguyky ,[email protected] [;kyh jke cqd la0 [email protected] la0 051942 cdk;k 36145 cdk;k ij dVk dusD'ku pyrk gqvk ik;k x;kA "

The petitioner was proceeded against under Section 148-B of the Electricity Act for the offence committed by him, which is punishable up to 3 years, is cognizable as non-bailable as provided under the Electricity Act.

The contention of the learned counsel for the petitioner is that Section 151-A of the aforesaid Act, gives only power of investigation to the concerned police station but provisions of Chapter XII of Cr.P.C. does not provide for any power of arrest yet the police of P.S. Binawar are making attempt to arrest the petitioner, which is without jurisdiction.

It is further contended that Section 41-A Cr.P.C provides that arrest of the accused person for offence punishable with imprisonment of 7 years or less are not to be made in a routine manner and arrest can be effected only after issuance of notice and in default of conditions mentioned therein. The contention of the learned counsel for the petitioner is 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.

In support of his contention, counsel for the petitioner has placed reliance upon the decision rendered in Arnesh Kumar Vs. State of Bihar and another, 2014 (8) SCC 273, wherein the Apex Court has observed that directions issued therein shall apply in all such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine- Police officers shall not arrest the accused unnecessarily and Magistrate shall not authorise detention casually and mechanically- Failure to comply with these directions, shall apart from rendering police officers concerned liable for departmental action, also make them liable to be punished for contempt of court- Authorising detention without recording reasons by Judicial Magistrate concerned shall be liable for departmental action by appropriate High Court- Copy of judgment to be forwarded to Chief Secretaries as also DGs of Police of all States, Union Territories and Registrar General of all High Courts for ensuring compliance therewith- Police- Arrest- Penal Code, 1860- S.498A- Constitution of India, Arts.21 and 22(2).

The petitioner in this regard has further placed reliance upon the decision rendered in Shaukin Vs. State of Uttar Pradesh, Laws (All)-2011-9-22.

From the extract quoted by us in the body of judgment, it is clear that electricity dues were not paid by Ashok Kumar S/o Ram Pal, Harinandan S/o Ganga Singh, Gharelu Mohanlal S/o Khyali Ram and their energy supply line was earlier disconnected but at the rime of raid their electricity connection found to be re-connected while amounted to theft of electricity.

As regard the judgment cited by the learned counsel for the petitioner in Arnesh Kumar (supra) is concerned that judgment has overlooked the context in which has been rendered. In that case Arnesh Kumar was the Apex Court was considering the power to police, to arrest an accused, without warrant, under Section 498-A read with Section 4 of Dowry Prohibition Act, 1961. Therefore the Court in the facts and circumstances of the case held that due to the rampant misuse of these provisions, it would be prudent and wise for a police officer not to make any arrest without some investigation for recovery to a reasonable satisfaction, as to genuineness of the allegations.

As stated earlier, this is not a case under the Dowry Prohibition Act or Section 498-A of the Act. It rather is a case under the Electricity Act, 2003, where the checking party under the Assistant Engineer of the department had visited the village at the spot and found theft of electricity being committed by reconnecting the power supply by the consumers without payment of dues.

Shri Shubham Yadav, learned counsel for the respondents submits that compounding for offence under section 152 (1) is permitted under Section 152(4) of the Electricity Act. It only once to a person or consumer. He further states that petitioner had also availed this opportunity, and therefore, he cannot now claim compounding again for a second time under the provisions of the Act.

After hearing counsel for the parties it appears that admittedly, the electricity supply of the petitioner had been disconnected earlier and on inspection by the it team was found to be re-connected illegally by the petitioner and the impugned FIR against him was lodged. The petitioner has prayed for the following reliefs;

I)issue an order, direction or writ in the nature of certiorari, call for record and quash the FIR at case crime no.225/2014 u/s 138-B Electricity Act, P.S. Binawar, Budaun dated 19.6.2014 (Annexure '1').

II) issue an order, direction or writ in the nature of mandamus and direct the respondents not to arrest the petitioner in F.I.R at case crime no.225/2014 u/s 138-B Electricity Act, P.S. Binawar, Budaun dated 19.6.2014 (Annexure '1').

III) issue any other writ, order, direction, which this Hon'ble Court        may deem just and expedient in the interest of justice. 
 

 
     IV) award cost of this petition in favour of the petitioner.
 

From the F.I.R, it is apparent that search/inspection operation was initiated at 11.05 A.M on 19.6.2014 and after search and investigation about 18 connections in three villages as mentioned in the FIR, was lodged at 5 p.m. The first information report has been lodged in the mid of June, 2014. Therefore, search was not carried out after sunset or before sunrise.

On examining of Section 138 of the Electricity Act, it is apparent that the appellant had violated the provision of the aforesaid Act read with the first information report. Under Section 147 of the Electricity Act, 2003, the penalties imposed under this Act, shall be in addition to, and not in derogation of, any liability in respect of payment of compensation or, in the case of a licence, the revocation of his licence which the offender may have incurred. He may also note that violation of provision under Section 151 is cognizable offence.

The police under Section 151A has power to investigate. An offence punishable under the Act and is vested all the power under Chapter XII of the Code of Criminal Procedure, 1973.

Further more Section 151-B not provides this:

"151-B. Certain offences cognizable and non-bailable- Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under sections 135 to 140 or section 150 shall be cognizable and non-bailable."

Compounding of offences which is provided under Section 152(4) which read thus:

"152. Compounding of offences.-

(4) The compounding of an offence under sub-section (1) shall be allowed only once for any person or consumer."

In so far as the two judgments cited by the learned counsel for the petitioner that the Electricity Act and its provision will prevail Special Law except they are not in derogation to the provision of Criminal Procedure. We may also note that Sections 153 and 154 the Electricity Act, which provides Special Courts which read thus:

"153. Constitution of Special Courts.- (1) The State Government may, for the purposes of providing speedy trial of offences referred to in [ sections 135 to 140] and section 150], by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas, as may be specified in the notification.

(2) A Special Court shall consist of a single Judge who shall be appointed by the State Government with the concurrence of the High Court.

(3) A person shall not be qualified for appointment as a Judge of a Special Court unless he was, immediately before such appointment, an Additional District and Sessions Judge.

(4) Where the office of the Judge of a Special Court is vacant or such Judge is absent from the ordinary place of sitting of such Special Court, or he is incapacitated by illness or otherwise for the performance of his duties, any urgent business in the Special Court shall be disposed of-

(a) by a Judge, if any, exercising jurisdiction in the Special Court;

(b) where there is no such other Judge available, in accordance with the direction of District and Sessions Judge having jurisdiction over the ordinary place of sitting of Special Court, as notified under sub-section (1).

154. Procedure and power of Special Court.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under ( sections 135 to 140 and section 150] shall be triable only by the Special Court within whose jurisdiction such offence has been committed.

(2) Where it appears to any court in the course of any inquiry or trial that an offence punishable under (section 135 to 140 and section 150) in respect of any offence that the case is one which is triable by a Special Court constituted under this Act for the area in which such case has arisen, it shall transfer such case to such Special Court, and thereupon such case shall be tried and disposed of by such Special Court in accordance with the provisions of this Act:

Provided that it shall be lawful for such Special Court to act on the evidence, if any, recorded by any court in the case of presence of the accused before the transfer of the case to any Special Court:

Provided further that if such Special Court is of opinion that further examination, cross-examination and re-examination of any of the witnesses whose evidence has already been recorded, is required in the interest of justice, it may re-summon any such witness and after such further examination, cross-examination or re-examination, if any, as it may permit, the witness shall be discharged.

(3) The Special Court may, notwithstanding anything contained in sub-section (1) of section 260 or section 262 of the Code of Criminal Procedure, 1973 (2 of 1974), try the offence referred to in [ sections 135 to 140 and section 150] in a summary way in accordance with the procedure prescribed in the said Code and the provisions of section 263 to 265 of the said Code shall, so far as may be, apply to such trial:

Provided that where in the course of a summary trial under this sub-section, it appears to the Special Court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the said Code for the trial of such offence:

Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years.

(4)A Special Court may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to, any offence tender pardon to such person on condition of his making a full and true disclosure of the circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof, and any pardon so tendered shall, for the purposes of section 308 of the Code of Criminal Procedure, 1973(2 of 1974), be deemed to have been tendered under Section 307 thereof.

(5)The [ Special Court shall] determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months proceeding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil court.

(6)In case the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, to the Board or licence or the concerned person, as the case may be, shall be refunded by the Board or licensee or the

concerned person, as the case may be, within a fortnight from the date of communication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment.

Explanation.- For the purposes of this section, "civil liability" means loss or damage incurred by the Board or licensee or the concerned person, as the case may be, due to the commission of an offence referred to in [ section 135 to 140 and section 150]"

With a notification constituted Special Court was notified by the Uttar Pradesh Shashan No.1232/VII-NYAYA-2- 204-206/81 Dated: Lucknow dated August 31,2004, which read thus:

" In exercise of the powers under section 153 of the Electricity Act, 2003 (Act no.36 of 2003) the Governor is pleased to constitute all the Fourth Senior most courts of Additional District and Sessions Judge of the district and where there is no such court, the court of the Senior most Additional District & Sessions Judges of the district, as the Special Courts under sub-section (1) of the said section and to appoint with the concurrence of the Chief Justice of the High Court of Judicature at Allahabad, all the presiding officers of the said courts as the Judges thereof for the purposes of providing speedy trial of offence referred to under section 135 to 141 of the said Act within their respective jurisdictions."

The Registrar General, High Court of Judicature at Allahabad had circulated notification vide C.L. No.29/ Main-B/Admin.(A-3) dated 21.9.2004 had conferred the powers of Special Courts to one of the existing Sessions Courts to try cases falling under the Electricity Act, 2003. The letter read thus:

" From,

O.N. Khandelwal, H.J.S.,

Registrar General,

High Court of Judicature at Allahabad.

 
	To,
 
		All the District & Sessions Judges, 
 
		Subordinate to the High Court of Judicature at 			Allahabad.
 
	C.L. No. 29/ Main-B/Admin.(A-3) Dated: Alld: 21.9.2004.
 
	Subject:- Conferment of powers of Special Courts to one of 	the  existing Sessions Courts to try cases falling under the 	Electricity Act-2003.
 
	Sir,
 

On the above subject, I am sending herewith a copy of Government Notification No.1232/VII-Nyaya-2-2004-206/81, dated August 31, 2004, regarding constitution of IV Seniormost court of Additional District & Sessions Judge in each district as Special Court under section 153 of the U.P. Electricity Act-2003 and where such Additional District and Sessions Judge is not available, the Seniormost Additional District & Sessions Judge of the district as Special Court under the aforesaid Act.

I am, therefore, to request you kindly to ensure compliance of the aforesaid Government Notification.

Enclosure:-					Yours faithfully,
 
As above.						Registrar General"
 
			
 

 

From the above, it is crystal clear that Special Courts have also been constituted and have been conferred power to try such cases as the instant case falling under the Electricity Act, 2003, which are functioning.

A perusal of the first information report has been lodged against the petitioner shows that cognizable offence is made out against the petitioner. Therefore, prayer (I) of the writ petition seeking relief for quashing of the FIR cannot be granted and as a consequence the petitioner is not entitled for relief no.(II) for stay of arrest.

Even otherwise proceeding under Section 135 of the Act had been taken against the petitioner which relates to theft of electricity, second proviso to Section 135 (1)(A) provides 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 hour from the time of such disconnect:

In the circumstances, we are not inclined to interfere in the matter and the petitioner has an efficacious remedy by moving the Special Court constituted under the Special Act which is the Electricity Act and the matter is specified therein.

For the aforesaid reason, petition is dismissed.

Dated 1.12.2014

SFH