@JUDGMENTTAG-ORDER
Mridula Mishra, J.@mdashHeard the counsel for parties. This application is for quashing the order of cognizance, dated 10.8.2005, as well as entire proceeding of Raxaul P.S. Case No. 106 of 2006. Case has been instituted for offences u/s 379 of the Indian Penal Code and under Sections 39 and 44 of the Electricity Act.
2. The Assistant Electrical Engineer, Raxaul, along with other officials and police force conducted raid on 26.6.2001 in the premises of three persons, including the petitioner. It is alleged in the first information report that petitioner even after disconnection of his electricity line by the Board on account of non-payment of energy bill was consuming electricity by taping in the main L.T. Line due to which the Electricity Board has suffered a loss of Rs. 5,000/-. First information report was instituted on 26.6.2001 itself, but, it remained pending for investigation for four years and the charge-sheet was submitted in the case in 2005.
3. Petitioner''s case is that since allegation against the petitioner was regarding the theft of electricity by taping, in order to avoid litigation and harassment, entire amount of arrears and penalty was deposited in the office of Electrical Executive Engineer, Electric Supply Division, Raxaul, on 9.7.2005. A certificate of no dues of penalty was also issued by the competent authority, which was submitted before the Court at the time of granting bail to the petitioner on 11.7.2005. In the given circumstance, as provided u/s 152 (3) of the Electricity Act, 2003, which relates to compounding of offences, entire criminal proceeding against the petitioner should be dropped.
4. Section 152 of the Electricity Act reads as follows:
"Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the Appropriate Government or any officer authorised by it in this behalf may accept from any consumer or person who committed or who is reasonably suspected of having committed an offence of theft of electricity punishable under this Act.
"152(2). On payment of the sum of money in accordance with sub-section (1), any person in custody in connection with that offence shall be set at liberty and no proceedings shall be instituted or continued against such consumer or person in any criminal court."
"152(3). The acceptance of the sum of money for compounding an offence in accordance with sub-section (1) by the Appropriate Government or an officer empowered in this behalf shall be deemed to amount to an acquittal within the meaning of Section 300 of the Code of Criminal Procedure, 1973 (2 of 1974)."
5. Counsel for the petitioner contended that, admittedly, total money has been paid and accepted by the competent authority as provided u/s 151(1) and a certificate showing acceptance of money has also been issued in his favour u/s 151(2) it amounts to an acquittal as u/s 152(3) of the Electricity Act, 2003. Continuation of any further proceeding in respect of the allegations made in the first information report now is completely illegal and without jurisdiction, as such, it must be quashed.
6. Another ground which has been taken by the petitioner for quashing of the order taking cognizance is that the first information report was instituted under Sections 39 and 44 of the Indian Electricity Act, 1910, but the said Act has been repealed by Electricity Act, 2003, under Electricity Act, 2003, there is no provision for punishment under Sections 39 and 44 of the Indian Electricity Act, 1910. The submission of the charge-sheet by the police in the year 2005 under Sections 39 and 44 of the Indian Electricity Act, 1910 and cognizance taken by the Sub-Divisional Judicial Magistrate, Raxaul, is completely without jurisdiction. For such allegations made in the first information report, Section 135 is the penal section available for the prosecution under the Electricity Act, 2003. Amended Act provides for trial by Special Court u/s 153 by a Presiding Officer in the rank of the Additional District and Sessions Judge. Since cognizance has been taken by the Sub-Divisional Judicial Magistrate, Raxaul, and not any Presiding Officer of the Special Court, order taking cognizance is completely without jurisdiction.
7. Mr. Mihir Kumar Jha, counsel appearing for opposite party No. 2, Additional Assistant Engineer, Raxaul, has stated that the grounds taken by the petitioner has no application in the present case. First information report was instituted against the petitioner on 26.6.2001 for commission of offence under Sections 39 and 44 of the Indian Electricity Act, 1910. On the relevant date the Indian Electricity Act, 1910, was in operation. So far the Electricity Act, 2003, is concerned, it came into force with effect from 10th June, 2003. Any proceeding which was initiated under the Indian Electricity Act, 1910, will continue under the same Act as it is saved u/s 6(e) of the General Clauses Act. Section 6 of the General Clauses Act reads as follows:
"6. Where this Act or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made, then, unless a different intention appears, the repeal shall not,
"(e) Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid."
8. Under the Indian Electricity Act, 1910, offence under Sections 39 and 44 was not compoundable, as such, even by depositing total amount along with penalty will not be absolved from facing the trial. Sections 135, 152 and 153 of the Electricity Act, 2003, is not applicable in the present case and there is no illegality either in the order taking cognizance or continuation of proceeding against the petitioner.
9. To regulate the generation, supply and use of electricity, the first legislation the Electricity Act of 1887. This Act was repealed by the Indian Electricity Act, 1903. The Indian Electricity Act, 1903, was found to be a tentative measure, as such, the Indian Electricity Bill was passed by the Legislature on 18th March, 1910, and it became the Indian Electricity Act, 1910 (9 of 1910) which came into force with effect from 1st January, 1910. In the year 2001, Electricity Bill, 2001, was finalised and the Bill was passed by the Parliament and after receiving the ascent of the President, the Electricity Act, 2003, was enacted and brought into force with effect from 10th June, 2003. Under the Indian Electricity Act, 1910, Sections 39 to 50 related to criminal offence and procedure. Theft of energy is defined in Section 39 of the Indian Electricity Act, 1910. Section 39 relates to 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. Section 44 deals with penalty for interference with the meters or licensee''s works and for improper use of energy, the punishment provided for committing such offence is imprisonment for a term which may extend to three year or with fine which may extend to five thousand rupees, or with both. Sections 39 and 44 have not been made compound-able. The Indian Electricity Act, 1910, has been repealed and a fresh enactment has come as Electricity Act, 2003. Under the Electricity Act, 2003, Chapter XIV relates to offences and penalties. Section 135 deals with theft of Electricity and the punishment is for a term which may extend to three years or with fine or both. Section 138 deals with interference with meters or works of licencee for which punishment is provided for a term which may extend to three years or with fine which may extend to Rs. 10,000/- or with both. Under this very Chapter Section 152 relates to compounding of offences. The appropriate Government or any officer authorised in this behalf may accept from any consumer or person who committed or reasonably suspected of having committed an offence of theft of electricity punishable under this Act a sum of money by way of compounding of the offence as specified. On payment of sum of money in accordance with sub-section (1) of Section 152, any person in custody in connection with the offence shall be set at liberty and no proceeding shall be instituted or continued against such consumer or person in any criminal court. Under sub-section (3) the acceptance of sum of money for compounding and offence in accordance with sub-section (1) of Section 152 shall be deemed to amount to an acquittal within the meaning of Section 300 of the Code of Criminal Procedure, 1973.
10. The question which arises for consideration is whether after coming into force of Electricity Act, 2003, a proceeding for commission of offence under Sections 39 and 44 of the Indian Electricity Act, 1910, can continue or the effect of repeal of the old Act and enactment of a new Act will be to the extent that the provisions of new Act will only be applicable. The counsel for the Electricity Board has taken recourse of Section 6 clause (e) of the General Clauses Act. It is well settled that Section 6 of the General Clauses Act does not save the provisions of repealed Act but only the right or liability which has accrued under the repealed provisions. In case where a repeal is followed by fresh legislation on the subject, Section 6 of the General Clauses Act would apply generally in the absence of a saving clause in the repealing statute itself. Section 6 would apply to case of repeal even if there is simultaneous re-enactment unless contrary intention can be gathered from the new statute. When the repeal is followed by fresh legislation on the same subject, would have to look to the provisions of new Act for the purposes of determining whether they indicate a different intention. The protection given by Section 6 of the General Clauses Act in respect of the right accrued under the old Act is not unqualified such rights and privilege are saved only when no contrary intention is inferred in the new enactment which repealed the old Act. The question which arises for consideration is whether Section 6 of the General Clauses Act will have any application, if contrary intention is expressed in the repealing statute and different intention is expressed by the legislature. In the Electricity Act, 2003, Section 185 is the saving clause. Section 185(2)(a) reads:
"185(2)(a). Anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act."
11. Section 135 of the Electricity Act, 2003, is corresponding provision for Section 39 of 1910 Act. Similarly Section 138 of the Electricity Act, 2003, is corresponding provision for Section 44 of 1910 Act. Procedure for proceeding in relation to theft of energy and tampering with meter as provided in 1910 Act is inconsistent with the provisions of the Electricity Act, 2003. u/s 185(2)(a) only those provisions of old Act have been saved which are not inconsistent with the provisions of Amended Act. In the new Act there is provisions for compounding of offences relating to theft and tampering with meter but same is not there in the old Act. In this view the old provision has not been saved under the Amended Act, 2003, and the provisions of Amended Act will be applicable and benefit of compounding will be available to such consumers also who is facing a criminal proceeding for commission of any offence initiated under the provisions of the Indian Electricity Act, 1910.
12. Counsel for the petitioner has also contended that since the Indian Electricity Act, 1910, has been repealed prior to the submission of the charge-sheet, as such, the submission of charge-sheet for commission of offence under Sections 39 and 44 of the Indian Electricity Act, 1910, as well as order taking cognizance is bad. At the time of submission of the charge-sheet Electricity Act, 2003, has come in effect. In the amended Act the punishment as provided u/s 39 or 44 of the Indian Electricity Act, 1910, is not available. The investigating officer overlooked the amended provisions of the Act. The Sub-Divisional Judicial Magistrate, Raxaul, also failed to consider this while taking cognizance. The charge-sheet was submitted under the non-existent provisions as well as the cognizance has also been taken for offence under the repealed Act, as such entire criminal proceeding is liable to be quashed. I find also force in the submission of the counsel for the petitioner.
13. Further it has been submitted that under the amended provisions of the Act the Sub-Divisional Judicial Magistrate is not competent to take cognizance but Presiding Officer of Special Court not below the rank of Additional District Judge as provided u/s 153 of the Electricity Act, 2003, is competent to take cognizance of any offence committed under the Act. The order taking cognizance is without jurisdiction also on this count.
14. Counsel appearing for the Electricity Board has placed reliance on two decisions in support of his argument that simply by depositing total amount of penalty the petitioner cannot be absolved from criminal liability for commission of offence for the reason that Sections 39 and 44 of the Indian Electricity Act, 1910, is not compoundable. The decisions are 1993 Cr.L.J. 1191 (M/s Mewar Marble Industries Pvt. Ltd. vs. Rajasthan State Electricity Board, Jaipur & Ors.) and 2003(2) P.L.J.R., S.C. 123 (J.M.D. Alloys Ltd. vs. Bihar State Electricity Board & Ors.). So far 1993 Cr.L.J. 1191, is concerned, in that case there is no consideration of the amended Act. Only the provisions of Indian Electricity Act, 1910, has been taken into consideration, as such, it has no application in the present case. 2003(2) P.L.J.R., S.C. 123, is also not applicable in the present case as the facts and circumstances of that case is just reverse to the facts of the present case. Facts of the case under the consideration before the Apex Court was whether on account of submission of final form for theft of energy the consumer stands exonerated from the deposit for making payment of the bill in accordance with the tariff of the value of the electricity dishonestly abstracted or consumed. In the present case, the matter which is for consideration is that when there is specific provision under the amended Act for compounding of an offence on payment of total amount along with penalty for theft of energy in such circumstance whether a criminal proceeding should continue under the provisions of repealed Act, though the competent authority under the provisions of subsection (1) of Section 152 has accepted and issued for total certificate sum with penalty showing acceptance under subsection (2) of Section 152 of the Act which amounts to acquittal under sub-section (3) of Section 152. Decision which has been relied by the counsel for the Electricity Board has no application in the present case.
15. On perusal of the entire material, I am of the view that even though the first information report was instituted for commission of offence under Sections 39 and 44 of the Indian Electricity Act, 1910, but on account of fresh enactment of Electricity Act, 2003, the provisions under the Electricity Act, 2003, will be applicable. The offence of theft of electric energy which has been made compoundable under the new Act will have application in the present case and on account of acceptance of total amount with penalty by the authorities the provisions of Section 152(3) of the Electricity Act, 2003, will be applicable in the present case. Acceptance of the amount will have an effect of acquittal in the case of the petitioner and the continuation of proceeding, under this circumstance, is illegal and without jurisdiction.
16. Accordingly, the order taking cognizance, dated 10.8.2005, as well as entire criminal proceeding of Raxaul P.S. Case No. 106 of 2001 are quashed. This application is allowed.
