Gurbachan Singh Bhawnani vs The State And Another
2001 Latest Caselaw 1418 Del

ORDER

S.K. Agarwal, J.

1. These petitions under Article 227 of the Constitution of India, read with Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') have raised a common question of law as to, whether the offences under Sections 39/44 of the India Electricity Act (for short 'I.E.Act') read with Section 379 of the Indian Penal Code (for short 'IPC'), which are non-compoundable, can be permitted to be compounded, by quashing the FIRs., consequent upon payment made by accused persons of the theft bill amount, after theft was detected and prosecution launched?

2. For the purposes of appreciating the controversy, facts of all the cases need not be stated. One case (Crl.M.(M).4107/2000) is being treated as the lead case. The facts of this case, in brief, are as under:

3. On 21st March, 1997, Assistant Engineer, DVB lodge a report (FIR), alleging that on 17.3.1997, as per directions of the Superintendent Engineer (Enforcement), joint team consisting of officials from enforcement, theft control, zonal staff of DVB, Police Officials conducted surprise raid in Okhla Industrial Area, during the course of raid, following person/concerns were found stealing electricity directly from the existing main lines of the DVB through PVC wire/two core cables:-

(1) M/s. A.V. Enterprises, proprietor Mrs. Asha Verma, RZ-2979/33, Tuqlakabad (Ext.), New Delhi -19. Direct theft. Total load - 17.456 K.W.

 (2) M/s. Searlet India, Proprietor Sh. Guru Charan Singh Bhavnani, RZ-2980/33, Tuqlakabad Ext., New Delhi-110 019.   Direct theft.    Total load 6.673 K.W.   

 

 (3) M/s. Fancy Dying House, Proprietor Suleman S/o Sh. S. Bax, RZ3063/34, Tuqlakabad Ext., New Delhi-110 019.   Direct theft.    Total load 38.018 K.W.   

 

 (4) M/s. Sai Electrical & Technical services, Proprietor Mr. R.B. Gautam, RZ-2922/33, Tuqlakabad (Ext.), New Delhi-110 019.   Direct theft.    Total load 2.53 K.W.   

 

 (5) M/s. Krishma Craft, proprietor Mr. Satpal Singh, RZ-2978/33 or 2927/33, Tuqlakabad Extension, New Delhi-110 029.   Direct theft.    Total load 23.192 K.W.   

 

 (6) Mr. B.L. Kushwoha, "Opp.H.No.2943/33, Tuqlakabad Extension, New Delhi-110 019."   Direct theft.    Total load 19.493 K.W.    

 

 4. The cables wires etc. were removal and seized as evidence. Photographs were taken. On the basis of the said report, above-noted case was registered. After investigation, challan was filed against petitioner Guru Charan Singh Bhavnani, proprietor of     M/s. Searlet Indai  and Ramesh Babbar Gautam. It was stated in the challan that Banke Lal Kushwoha and Suleman could not be arrested and they were kept in column No.2 stating that after their arrest supplementary challan would be field. it was further stated that premises of   Krishma Craft   were lying closed and its owner or the tenant could not be located. Learned trial court took cognizance on the basis of the material on record, summoned accused persons including Banke lal Kushwoha and Suleman.  

 

5. In October, 2000, petitioner filed the above petition, inter alia, urging that the entire outstanding amount was paid to the DVB as per their office order dated 16th May, 1996 and that the FIR and proceedings, therefore, are liable to be quashed. Along with the petition, copies of FIR, challan showing payment of Rs. 89,408.81 to DVB and the letter dated 12th May, 1997, written by its Executive Engineer tot he SHO informing him, that theft bill has been paid by users against whom the FIR was lodged, therefore, DVB is not contemplating any further action against the defaulter. DVB and State have chosen not to file the reply.

6. I have heard learned counsel for petitioners, App for the State as well as learned counsel for DVB and have been taken through the record.

7. Learned counsel for petitioner argued that in terms of office order dated 16th May, 1996 issued by Delhi Electricity Supply Undertaking (now Delhi Vidyut Board), petitioners have made payment of entire theft bill and amicably settled the dispute and that DVB had also written to the SHO of the area concerned that it does not want to pursue the cases, therefore, the FIRs and the proceedings based thereon against petitioners be quashed. Reliance was placed on several decisions of this Court, wherein on the basis of said office order of DVB, FIRs, were quashed, namely, Shiv Bhasin & Ors. v. State (Crl.W.P. No. 346/2000) decided on 24.5.2000; Mahender Kumar & Anr. v. State & Anr., (Cr.W.P.No.1189/99); Harish Puri & Ors. v. State & Anr., (Crl.W.P.No.56/2000) decided on 21.3.2000; Jai Bhagwan v. State & Anr. (Crl.W.P.No.69/2000) decided on 18.2.2000; and P.N. Kohli & Anr. v. State & Anr., 88(2000) DLT 852. Learned counsel for the State argued to the contrary and placed reliance on M/s. Newar Marble Industries Pvt. Ltd. v. Rajasthan State Electricity Board, Jaipur, 1993 Crl.J.1191.

8. the case of petitioners is based on the office order of the DVB dated 16th May, 1996, on the basis of which, above-noted FIRs were quashed. Therefore, it would be useful to reproduce the same. it reads:-

"The Special Officer, exercising the power of DESU/MCD, vide decision No. 52/84/GW/Crop. dated 1st May, 1996 have accorded approval for amendment in the existing tariff so as to limit the period of assessment to four months as against six months in cases of tampering of seals and metering equipment etc., for pilferage of energy and/or direct theft in cases where FIR has not been lodged (for whatever reason) and the consumer is willing to pay the assessment bill at the rate and manner provided in the tariff.

However in case the consumer doe snot come forward and is also not willing to pay the assessed bill immediately, FIR will be lodged besides other actions, including filing of recovery Suit of assessment bill for a period of six months as per existing provisions of the tariff.

This is issued with the approval of General Manager."

9. "Theft of energy" is defined in Section 39 of the E.E. Act as under:-

"39. Theft of energy. --whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than one thousand rupees, or with both: and if it is proved that any artificial means or means not authorised by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer."

10. As per the settled law dishonest abstraction of electricity under Section 39 of I.E. Act is also an offence under Section 379 of IPC punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both, FIRs sought to be quashed were registered under both these Section.

11. Law with regard to the compoundability of non-compoundable offence is well settled by several authoritative pronouncements of the Supreme Court, to the effect that only such offences which are included in two tables of Section 320 Cr.P.C. can be compounded with permission or without permission of the Court, as the case may be; sub-section (9) of Section 320 prohibits the compounding of any offence, except which are provided in the Code. The Apex Court in Surendra Nath Mohanty & Another v. State of Orissa, JT 1999 (3) SC 408 has held:-

"3. Section 320 which deals with "compounding of offences" provides two Tables therein, one containing descriptions of offences which can be compounding by the person mentioned in it, and the other containing descriptions of offences which can be compounded with the permission of the Court by the person indicated therein. Only such offences as are included in the said two Tables can be compounded and none else. Sub-section (9) of Section 320 of the Code of Criminal Procedure, 1973 imposes a legislative ban in the following terms:-

"(9) No offence shall be compounded except as provided by this section."

12. After referring to some of its earlier decisions, it was further observed:-

"4. It is apparent that when the decision in Mahesh Chand (supra) was rendered attention of the learned Judges was not drawn to the aforesaid legal prohibition. Nor was attention of the learned Judges who rendered the decision in Y. Suresh Babu (supra) drawn. hence those were decisions rendered per incuriam. We hold that an offence which law declares to be non-compoundable even with the permission of the court cannot be compounded at all. The offence under Section 326 IPC is, admittedly, non-compoundable and hence we cannot accede to the request of the learned counsel to permit the same to be compounded."

13. Sub-clause (9) of Section 320 Cr.P.C. provides that "no offence shall be compounded except as provided by this Section". The expression "offence" is defined in Section 2(n) Cr.P.C. as under:-

"any act or omission made punishable by any law for the time being in force and includes any act in respect ow which a complaint may be made under Section 20 of the Cattle Trespass Act, 1871".

14. The offence under Section 39 of the Electricity Act is not compoundable under the Act or under the Code, and the offence under Section 379 IPC is also not compoundable, where the value of stolen properly exceeds Rs. 250/-.

15. Before considering the question whether the compounding can be permitted and whether the office order issued by DVB referred to above would override the mandate of law,it is necessary to consider the effect of payment of the amount of theft bill after the commission of the offence. The Apex Court in Rajneesh Aggarwal v. Amit J. Bhalla, JT 2001 (1) SC 325 while considering the effect of the deposit of the cheque amount by the accused during the pendency of the criminal complaint under Section 138 of Negotiable Instruments Act does not wash away the liability of the criminal offence, though in the matter of awarding sentence, it may have some effect on the court trying the offence, but the criminal proceedings cannot be quashed on account of the deposit of money in the Court. It was held:-

"So far as the criminal compliant is concerned, once the offence is committed, any payment made subsequent thereto will not absolve the accused of the liability of criminal offence, though in the mater of awarding of sentence, it may have some effect on the court trying the offence. But by no stretch of imagination, a criminal proceeding could be quashed on account of deposit of money in the court or that an order of quashing of criminal proceeding, which is otherwise unsustainable in law, could be sustained because of the deposit of money in this Court. In this view of the matter, the so-called deposit of money by the respondent in this Court is of no consequence. (emphasis supplied).

16. I would also like to mention here about another case for quashing of the summoning order in FIR NO. 48/94, under Section 39 of the I.E. Act and Section 379 IPC, P.S. Ashok Vihar ( Ajay Kumar v. State and DVB Crl.M.(M).No.1746/2000) which was pending in this Court. In this case, trial court record was summoned and proceedings before trial court were ordered to be stayed. Matter came up for hearing before this Court on 6th February, 2001 when other connected matters for quashing of such FIRs were listed. While this petition was still pending, Pawan Kumar, co-accused in the case field a writ ( Pawan Kumar v. The State of NCT, Delhi. Crl.W.P.No.231/2001) seeking quashing of the said FIR 48/94. neither the counsel for the DVB nor the counsel for the State appear to have brought to the notice of the Division Bench that the petitioner for quashing of the order of summoning filed in the same FIR was pending before this Court and that the record has also been summoned. By order dated 20th April, 2001 FIR No. 48/94 was quashed, while said matter was still pending in this Court. This is being mentioned to highlight the necessity of authoritative pronouncement by the larger Bench.

17. To re-call as per the allegations, petitioners were found extracting electricity form the main-lines of DVB for commercial purposes. These offences were not committed in the heat of moment or absence of mental balance. These offences also do not arise out of any family dispute. These offences were committed for unlawful economic gains with pre-planning. In my considered view, in such cases, object of the law can be better served, if in addition to the securing of gains obtained by crime, the culprits, if found guilty, are also punished. Of course, as held by the Supreme Court in cases where the theft amount is paid voluntarily, it should have a bearing on the quantum of punishment. The greatest incitement to the crime is the hope of escaping punishment. If the law does not punish the crime, it would help wickedness. Quashing of the FIRs in such cases would be against the public policy.

18. The decisions cite by the learned counsel for the petitioners for quashing of FIRS, in electricity theft matters do nt appear to be, in consonance with the Supreme Court decisions in Surendra Nath Mohanty & Anr. v. State of Orissa (supra), Rajneesh Aggarwal v. Amit J. Bhalla (supra) as well as the principles laid down by the Supreme court, for quashing of FIRs in State of Haryana v. Bhajan Lal, 1992 SCC (Crl) 426 and for exercise of inherent powers by the High Court against the express bar of law, in Madhu Limye v. State of Maharashtra. . However, bound by judicial discipline, I deem it appropriate to refer the above matters for authoritative pronouncement by the larger Bench.

19. For the foregoing reasons, subject to the orders of the Hon'ble Chief Justice, list these petitions before appropriate Bench on 14th September 2001 for directions.