Sutinder Lal vs Dvb And Ors.
2002 Latest Caselaw 1567 Del

JUDGMENT

Mahmood Ali Khan, J.

1. This petition is filed under Section 482 of the Cr.P.c. for quashing the FIR No. 107/98 registered at P.S Abedkar Nagar under Section 39 and 44 of the Indian Electricity Act (in short the Act) read with Section 379 IPC and the criminal proceeding arising there from and pending before the court.

2. Briefly stated, the facts are that a joint team of the DESU/DVB conducted a raid at premises No. 61-B, Saninik Farm and detected theft of electricity by hooking light PVC copper wire of black colour with the electricity main line, details of which was given in the complaint, thereby offences under Section 39 and 44 of the Act read with Section 379 of IPC are alleged to have been committed. After investigation was over the chargesheet was submitted for prosecution of the petitioner which is pending before the court.

3. The contention of the petitioner is that the respondent/DVB had raised a bill for Rs. 1,19,439.80 on the tariff applicable on theft/dishonest abstraction of the electrical energy and directed it to be paid on or before 13.4.1999. the petitioner has paid the entire amount of the bill on 13.4.1999 against a receipt. In accordance with the Circular dated 16.5.1996 issued by the respondent/DVB the complaint in respect of theft of electricity should be filed only when the theft bill raised by the DVB for payment was not paid by the consumer by due date and not otherwise. Without giving an opportunity to the petitioner to pay the amount payable as per appropriate tariff in case of dishonest abstraction of electricity, a complaint could not be made and FIR an also not be registered. The registration of the FIR in violation of the office circular of DVB is illegal and is liable to be set aside. Referring to the judgment of this court in Purshotam Lal Gupta v. State and Anr. was prayed that the case registered against the petitioner and the charge-sheet filed against him for the prosecution of the petitioner for the offences under Section 39 and 44 of the Act read with Section 379 IPC be quashed.

4. Counsel for petitioner has argued that as per Office Circular No. CE(COMML)/DOI/P-29/96-97/7 dated 16.5.1996 the FIR should not be lodged in cases of pilferage of energy and/or direct theft, in case where FIR has not been lodged, and the consumer was willing to pay the assessment bill at the rate and the manner provided in the tariff. He has contended that the respondent raised a demand in accordance with this Circular and the petitioner has duly deposited the amount of the theft bill within the due date therefore, the filing of the complaint is in breach of this Office Circular. The FIR which has been registered on the basis of the complaint and the charge-sheet filed are liable to be quashed. He has heavily relied upon the judgment of this court in Purshotam Lal Gupta (supra). He also referred to the judgment of another Single Bench of this court in Mukesh Kumar v. State and Anr. 87(2000) DLT 749.

5. I have given careful consideration to the submissions made by the counsel for the petitioner and the case law cited by him.

6. It is pertinent to note that as per Office Circular dated 16.5.1996 the complaints are not to be lodged for registration of FR in case of pilferage of energy and/or direct theft if in cases where "FIR has not been lodged for whatever reasons and the consumer is willing to pay the assessment bill at the rate and manner provided in the tariff". In the instant case the FIR was registered on the complaint made by the respondent on 7.3.1998. The petitioner in para 2 and 3 of the petition, however, alleged that he was required to pay the bill raised by the respondent by 13.4.1999, i.e. much after the registration of the FIR of the case.

7. The case has been registered for dishonest abstraction of the electricity by the petitioner by hooking the electrical wires with the electrical lines of the respondent/DVB. The petitioner is as such had committed offence under Section 39 and 44 of the Act. Section 5 of the Indian Penal Code has provided as under:-

"Certain laws not to be affected by this Act.--Nothing in this Act shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of any special or local law."

8. It is clear that the provisions of the IPC would not affect the provisions of Section 39 and 44 of the Act, which is a special law. Even if the provisions of Section 379 IPC is added while registering the case yet the offence of theft of electrical energy is covered by Section 39 and 44 of the Act. The person committing such theft would not be liable to be punished additionally for offence under Section 379 IPC though technically speaking the provisions of Section 379 IPC would also be attracted.

9. The offences under Section 39 and 44 of the Act and Section 379 IPC in this case are non-compoundable offences. DESU office circular dated 16.5.1996 is an administrative direction/guideline to be followed by its staff in the matter of registration of the FIR. It has no statutory force and case registered in violation thereof will not contravene the provisions of Act.

10. In Purshotam Lal Gupta (supra) a Single Bench of this court in more or less similar facts had quashed the FIR registered against the petitioner. It was held that no FIR could be lodged if the amount demanded by the respondent was paid by the consumer as per tariff applicable. In the case of Mukesh Kumar v. State (supra) also an another Single Bench of this court had after considering some other decisions of this court had quashed the FIR after the petitioner had deposited the entire theft bill raised by the DVB.

11. A perusal of the judgment in Purshotam Lal Gupta (supra) shows that the decision of the Full Bench of this court in Gurcharan Singh Bhawnani v. State and Anr. was not brought to the notice of the learned Single Judge. A learned Single Judge (S.K. Aggarwal, J.) of this court made a reference in bunch of cases for an authoritative decision by a Larger Bench a question similar to the question which has arisen for determination in this case. Reference is reported as Gurcharan Singh Bhawnani v. State and Anr., 2002 (II) AD (Delhi) 66. In this case also the FIR and charge-sheet was filed for prosecution of the consumer under Section 39 and 44 of the Act and Section 379 IPC and the consumer had paid the theft bill raised by the DVB in accordance with office circular of the DVB No.Co.II/P-25/96-97/58 dated 26.2.1997. This office circular had laid down guidelines for lodging FIR in the cases of dishonest abstraction of electricity. In cases where consumer came forward and paid the theft electricity bill as per relevant tariff on time FIR was not to be lodged with police in terms of these guidelines. The said guideline is similar to the office circular dated 16.5.1996 relied upon in this case. The Full Bench noted the facts in paragraphs 2 and 3 of the judgment as under:

"2. Factual aspects need not be noted in detail, as the basic issue involved in all these cases is that proceedings were initiated for alleged commission of offences punishable under Sections 39/44 of the Indian Electricity Act, 1910 (in short the Act) read with Section 379 of the Indian Penal Code, 1860, (in short, IPC) and prayer was for quashing them as theft bill amounts have been paid.

3. Learned Counsel for petitioners submitted that even though there may be bar for compounding of offences in terms of Sub-section (9) of Section 320 of the Code, yet there is no bar for exercise of power under Section 482 of the Code in appropriate cases to either prevent the abuse of the process of the Court or to secure ends of justice. Similar question has been raised before the Courts and the Courts are flooded with litigation of this nature. There is no dispute on the fact that offences in question are not compoundable in view of the specific bar under Sub-section (9) of Section 320."

12. After considering the whole gamut of the case law on the power and jurisdiction of the High Court under Section 482 of Cr.P.C. and the law laid down by the Supreme Court in various decisions including in State of Haryana v. Chaudhary Bhajan Lal and Ors. on this question the Full Bench decided the reference made to it as under:-

"The legislative mandate enshrined in Section 320(9) of the Code is manifestly clear. It is couched in a mandatory form. This Court in exercise of the jurisdiction under Section 482 of the Code cannot add, vary or amend a statutory provision. Section 320 of the Code which deals with compounding of offences is exhaustive in its nature and only those offences can be compounded in accordance with the provisions of said provision can be so done and not in any other manner. That being the position, we are of the considered view that offences which are not compoundable under Sub-section (9) of Section 320 cannot be dealt with under Section 482 of the Code."

"It is needless to observe that what is not permissible under Section 482, Cr.P.C. cannot be achieved by resorting to Article 226 of the Constitution. The principles governing quashing of criminal proceedings are well settled by the Supreme Court. Quashing of the FIRs and proceedings thereon is permissible in terms of principles laid down in State of Haryana v. Bhajan Lal, and several subsequent judgments. References are accordingly answered. The matters shall be placed before Single Judge for disposal."

13. The judgment in Mukesh Kumar v. State and Anr. (supra) was pronounced prior to the decision of the Full Bench. This Bench is bound by the law laid down by the Full Bench. It squarely covers the facts of the present case.

14. For the reasons stated above following the law laid down by the Full Bench in Gurcharan Singh Bhawnani (supra) case it is held that this court has no power under Section 482 Cr.P.C. to allow compounding of a non compoundable offence and quash the FIR and the criminal proceeding pending in a court of law for a non compoundable offence.

Result of the above discussion is that the petition has no merit. It is dismissed.