Gopal Aggarwal vs State And Anr.
2002 Latest Caselaw 1568 Del

JUDGMENT

Mahmood Ali Khan, J.

1. This petition is filed under Section 482 of the Cr.P.C. for quashing of the FIR No. 896/99 registered at P.S. Mangol Puri under Section 39 and 44 of the Indian Electricity Act (in short the Act) read with Section 379 of the IPC and the criminal proceedings emanating there from, pending before the court of the Metropolitan Magistrate.

2. Briefly stated the facts are that a joint team of the respondent/DVB conducted raid on the premises of the petitioner M/s Gopal Plastics at Mangol Puri Khurd on 14.10.1999 and detected fraudulent abstraction of the electricity from electricity connection bearing K.No. 146809 installed in the premises in the name o Daya Chand. As per report of the joint inspection team the theft of electrical energy was being committed by "tampering the metering equipment by insertion of thin plastic film to stop movement of meter disc". On the complaint made by the by DVB/respondent on 14.10.1999 the FIR No. 896/99 was registered at P.S. Mangol Puri for offences under Section 39 and 44 of the Act read with Section 379 of IPC.

3. The petitioner has alleged in the petition that the complaint which resulted in the registration of the case was lodged in contravention of the guidelines embodied in the Circular No. CO.II/P-25/96-97/58 dated 26.2.1997. These guidelines mandated the officials of the DVB, after the inspection of the premises of the consumer was carried out to raise a theft electricity bill at appropriate tariff rate and lodge the report for registration of the case with the police only after the consumer has failed to deposit the electricity bill within the stipulated time. In the instant case it is contended that the complaint was made on 14.10.1999 soon after the inspection was carried out by the joint inspection team without giving an opportunity to the petitioner to pay the electricity bill raised by the DVB on the appropriate tariff rate applicable to the theft cases. It is also contended that the dispute about the electricity bill raised by the DVB subsequent to the registration of the case was settled by permanent Lok Adalat on 14.2.2001 and the petitioner in accordance with this settlement has paid the revised electricity bill in January, 2000. It is alleged that the petitioner now has no pending liability on the basis of the inspection carried out on 14.10.1999 and the FIR is liable to be quashed in the light of the judgment of this Court and the Supreme Court.

4. On 22.5.2002 when the matter was heard, this court observed that the FIR and criminal proceedings in question cannot be quashed in view of the decision of the Full Bench of this court in Gurcharan Singh Bhawnani v. State and Anr. . Counsel for petitioners took time to examine the judgment of the full Bench and the question of law involved. Now counsel for petitioner has relied upon heavily on the judgment of Single Bench of this court in Purshotam Lal Gupta v. State and Anr. wherein a learned Single Judge after referring to the Circular dated 16.5.1996 has held that lodging of the complaint dated giving an opportunity to the consumer to make the payment of the electricity bill raised as per the tariff applicable to the theft cases would be contravention of Section 50 of the Act and so would be liable to be quashed in the light of the guidelines laid down by the Supreme Court in State of Haryana and Ors. v. Bhajan Lal and Ors., . The counsel has also referred to another judgment of this court in P.N.Kohli and Anr. v. State and Anr. 88(2000)DLT 852 wherein another bench of this court had taken a similar view. The parties in that case had amicably settled their matter before a Lok Adalat and the consumer had deposited the entire amount of the theft bill and had prayed for quashing of FIR.

5. In the instant case also the petitioner has relied upon the guidelines for processing of theft of energy and fraudulent abstraction or tampering cases in terms of Office Circular No. Co. II/P-25/96-97/58 dated 26.2.1997 issued by DESU, the predecessor of the DVB. The Circular of the DVB No. CE(COMML)/DOI/P-29/96-97/7 dated 16.5.1996 was also referred to in which it was directed that in the case of tampering of seals and metering equipment, for pilferage of energy and direct theft of energy cases where FIR has not been lodged for whatever reason and the consume was willing to pay the assessment bill at the rate and manner provided in the tariff the FIR should not be lodged and that FIR may be lodged and other actions including filing of recovery suit of the assessed bill etc., may be taken if the consumer does not come forward and is not willing to pay the assessed bill immediately.

6. In the instant case the FIR was lodged on 14.10.1999 the date on which the fraudulent abstraction of the electricity by tampering with the meter by inserting a film in the mater to stop the rotation of the disc was detected by the joint inspection team of the DVB. The electricity bill at the appropriate tariff rate raised by the DVB was settled in the Lok Adalat and was paid in January, 2000 much after the registration of the case.

7. It is pertinent to note that as per Officer Circular dated 16.5.1996 the complaints are not to be lodged for registration of FIR 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.

8. The case has been registered for dishonest abstraction of the electricity. The petitioner is as such had committed offence under Section 39 and 44 of the Act, which are non-compoundable and Section 379 IPC. 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."

9. 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 offences under Section 379 IPC though technically speaking the provision of Section 379 IPC would also be attracted.

10. Anyhow, a similar question of quashing of FIR and criminal proceedings for offence under Section 39 and 44 of the Act read with Section 379 IPC arose for consideration before a learned Single Judge (S.K.Aggarwal, J) of this court in Gurbachan Singh Bhawani v. The State and Anr. 2002 II AD(Delhi) 66. The learned Judge finding that conflicting views have been expressed in the decisions of different Benches of this court made a reference for authoritative decision by a Larger Bench on the question. In the cases before the learned Single Judge also the plea of the petitioner was similar to the one raised in the instant petition.

The petitioner had paid the theft bill and wanted the FIR and criminal proceeding emanating there from to be quashed on the ground that the FIR was registered in contravention of the guidelines laid down in office Circular referred to in this case also. The Full Bench which was constituted for answering the reference decided the question referred to in Gurbachan Singh Bhawnani v. State and Anr. . AS such, the question which has been raised in the instant case and which was before the learned Single Judge in Purshotam Lal Gupta (supra) was the subject matter of the reference which was considered by the Full Bench of this court in Gurbachan Singh Bhawani v. State and Anr. (supra). The Full Bench after examining the relevant statutory provision and the case law of Supreme Court on the power and jurisdiction of the High Court under Section 482 Cr.P.C. for quashing the FIR and the proceedings pending before a subordinate court in non-compoundable offences held that the High Court had no power in exercise of its inherent power under Section 482 Cr.P.C. to quash FIR and criminal proceedings in case the offence are non-compoundable otherwise than the guidelines laid down in State of Haryana v. Chaudhary Bhajan Lal (supra). In para 9 of the judgment Full Bench observed 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."

11. This court is bound by the decision of the Full Bench. The contention raised by the petitioner are not tenable and the FIR and the proceedings emanating there from cannot be quashed by this Court in exercise of power under Section 482 Cr.P.C. as the offences for which it is registered are not compoundable offences under Section 320 of the Cr.P.C. Full Bench decision fully covers this petition.

For the reasons stated above, the petition has no merit. It is dismissed.