Mosmat Swaran @ Swaran Manraw Vs State of Bihar and Another

Navaniti Pd. Singh, J.@mdashNoticing the apparent conflict between two decisions of single Judges of this Court, apparently in respect of the same issue, this case has been referred to Division Bench for settling the issue. The judgments in conflict are said to be in the case of Binod Giri v. The State of Bihar & Another, in Cr. Misc. No. 45443 of 2006 decided on 24.01.2007 by Hon''ble Justice Smt. Mridula Mishra, J. and is reported in Binod Giri Vs. The State of Bihar and Another, . The second judgment, though reported later is the judgment rendered earlier in time to the former judgment. This is the case of Gopal Sao and Another v. The State of Bihar & Another, decided on 08.01.2007 by Hon''ble Mr. Justice Samrendra Pratap Singh, J. since reported in 2010 (1) PLJR 614. Both cases dealt with compounding of offences of electricity theft under Indian Electricity Act, 2003. In the first noticed case, that is, Binod Girl (supra) it was, inter alia, held by this Court that if upon detection of theft of electricity amount of loss and penalty quantified by the Bihar State Electricity Board (hereinafter referred to as the Board) is fully paid and accepted by the authority u/s 152(1) of the Electricity Act. 2003 (hereinafter referred to as the Act), that would amount to compounding of the offences resulting in acquittal and consequentially ho prosecution could continue. In the later noticed case, being that of Gopal Sao and another (supra), it has been, inter alia, held that the quantification of loss for unauthorized use of electricity in terms of Section-126 of the Act and payment thereof is totally different from the provisions of Section 152 of the Act which provides for payment of compounding fee as mentioned under that section. The two liabilities are different and distinct. Payment of assessed amount u/s 126 of the Act would not absolve the petitioner of his criminal prosecution unless the compounding fee as envisaged in Section 152 (2) of the Act is separately paid.

2. Thus seen, as we understand, if facts alleged and facts found in the two cases are taken into consideration there is no apparent conflict in the two judgments which are correct on their own facts. But, in view of the generality of the statements and/or expositions contained in the two judgments there is a confusion which does required to be cleared, especially when we notice that there are large number of reported cases following the Judgment in the case of Binod Giri (supra), as if it lays down the law that mere payment of the damages assessed in the F.I.R. would result in compounding the offences, which is not the correct approach.

3. The facts found in the case of Binod Giri (supra) is that the payment was accepted by the authority in terms of Section 152 of the Act and the natural consequence would be compounding and, consequential, acquittal, but this case does not say and should not be understood to be saving that if the assessed loss which is a penal assessment is paid it would amount to compounding of the offence which unfortunately is the trend of several subsequent judgments of the single Judges of this Court.

4. It would be the duty of this Court to remind ourselves what was said by Earl of Halsbury LC more than a century back in Quinn v. Leathern, 1901 AC 495 which has been repeatedly noticed with approval in Indian Court. I would refer to the case of State of Orissa v. Sudhansu Sekhar Misra & Ors. the judgment of Constitution Bench of the Apex Court which decision is reported in The State of Orissa Vs. Sudhansu Sekhar Misra and Others, and the relevant passage is quoted hereunder :--

...A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury LC said in Quinn v. Leathern, 1901 AC 495.

Now before discussing the case of Allen v. Flood, (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.

It is not a profitable task to extract a sentence here and there from a judgment and to build upon it.

5. If the said principle of interpretation of judgment is kept in mind it would be seen that both the judgment are correct on their own facts. But, for the reasons as noticed above the reference having been made with pertinent questions formulated, we propose to examine the provisions of the Act in this regards as guidance for future reference in law but before we do so we must notice facts of the case in question.

6. It appears that in the afternoon of 14.03.2005 an inspection was conducted by the Junior Electrical Engineer at P.R.D.A. Flat No. 193, Block No. 24 at East of McDowell Golambar, Rajendra Nagar, P.S. Kadamkuan, District Patna, pursuant to which Kadamkuan P.S. Case No. 229 of 2005 was instituted for alleged theft of electricity in terms of Section 39/44 of Indian Electricity Act, 1910 read with Section 379 I.P.C. In the F.I.R., it was, inter alia, alleged that upon inspection it was found that the aforesaid flat had an electric connection which had been disconnected for dues of Rs. 2024, but the accused petitioner, Mosmat Swaran @ Swaran Man-raw was found using electricity directly from the main bar. Her installed load was 1 KVA and, as such, the Board had suffered a loss of Rs. 2024 and Rs. 5000. Upon charge-sheet having been filed, the learned Chief Judicial Magistrate took cognizance of the offence and the case was pending trial for quashing of which this application u/s 482, Cr.P.C. was filed.

7. On behalf of the petitioner, it was submitted that the total amount of arrears and penalty as assessed being total of Rs. 7024 was deposited on 16.03.2005, as per bill raised, which is Annexure-3 to this application. It may be noted that the bill states that the bill as being raised as an F.I.R. bill and F.I.R. dues and the receipt also states the same, Petitioner''s contention is that having paid the full F.I.R. dues in terms of judgment of this Court In the case of Binod Giri (supra) the criminal proceedings would be deemed to be compounded.

8. The counsel for the Board submits that in terms of the decision of this Court in the case of Gopal Sao (supra) no compounding fee, as envisaged u/s 152 of the Act, having been paid and the payment being in terms of assessment as made under Section. 126 of the Act, the criminal prosecution is to continue and cannot be quashed much less deemed to be compounded.

9. Now, we may refer to the relevant part of order dated 28.04.2010 of this Court in the present case formulating the questions required to be resolved by this Division Bench :--

The points for determination are "whether the Board can charge the compounding amount u/s 152 of the Electricity Act, 2003, in spite of the fact that the arrears and penalty have already been deposited by the consumer or the acceptance of the arrears and the penalty will amount to acquittal.

Once Electricity Board accepts the penalty and the other arrears amount, then the Electricity Board is precluded to charge the compounding amount u/s 152 of the Electricity Act or the deposit of arrears and penalty as assessed u/s 126 of the Act will not entitle the consumer for acquittal as envisaged u/s 152 of the Act unless the compounding amount u/s 152 of the Act is not deposited.

10. In order to answer the question and resulting apparent conflict, if any, we deem it proper first to discern the scheme of the Electricity Act, 2003 in relation to these issues and also to notice the difference, if any, between the provisions of the Act as It was enacted and the substantial amendments that were made to it by virtue of Electricity (Amendment) Act, 2007 with effect from 15.06.2007.

11. In order to appreciate the law and the respective changes In Sections 126, 135, 152 & 154 of the Act, the said provisions are quoted hereunder :-

12. First, we would like to point out the concept of theft of electricity. Earlier under the Indian Electricity Act. 1910 theft of electricity was dealt with under Sections 39 & 44 thereof and for the purposes of punishment it was referable to Section 379, I.P.C. The reason was as explained by the Apex Court in the case of Avtar Singh Vs. State of Punjab, that electricity being not considered to be a movable property, there cannot be theft thereof within the meaning of Section 379, I.P.C. It is a theft as statutorily defined under Sections 39/44 of the Electricity Act, 1910 and Section 379, I.P.C. is referred only for the purposes of punishment that is to be awarded. It is not a substantive offence punishable u/s 379 of the I.P.C. This Electricity Act of 1910, the Electricity (Supply) Act. 1948 and the Electricity Regulatory Commission Act, 1998 have been repealed and replaced by the Electricity Act, 2003 as a comprehensive legislation in this regards. In this new Act, being Act of 2003, apart from others a concept of unauthorized use of electricity has been created as distinct from theft of electricity. The basic distinction between the two provisions being the concept of dishonesty. Section 126 of the Act provides for situations where unauthorized usage of energy is found as defined therein and authorizes the specified Assessing Officer to assess to the best of his judgment the electricity charges payable by such person who uses electricity unauthorisedly. A reference to the proviso as contained in sub-section (4) of Section 126 of the Act, as it was originally enacted, would show that if upon detection of unauthorized use a provisional assessment is made and if the sum so assessed is deposited then the person shall not be subject to any further liability or any action by any authority whatsoever. The manner in which the assessment has to be made, as originally provided, is contained in sub-section (6) of Section 126 which stipulates that it shall be made at the rate equal to 1-1/2 times the tariff applicable. Sub-section (5) of Section 126 provides, inter alia, that the period would be maximum of six months subject to the consumer establishes a shorter period. What is unauthorized use of electricity is to be found in the explanation (b) of the said section.

13. Now, we may refer to Section 135 of the Act, as originally enacted. The opening words whereof are whoever dishonestly abstracts or consumes or uses electricity, commits theft of electricity and different punishment for different contingencies are provided therein. The essential difference between Section 126 and Section 135, that is, between unauthorized user of electricity and theft of electricity has been pointed out by the Apex Court in a very recent decision in the case of The Executive Engineer and Another Vs. Sri Seetaram Rice Mill, . The Apex Court has pointed out the two provisions operate in different fields and have no commonality with each other. Section 135 deals with offence and penalty of theft electricity, which falls within criminal jurisprudence and mens rea is constituent of the said offence whereas Section 126 primarily falls under civil law and does not involve mens rea.

14. Section 152 is for compounding of offences. It clearly provides how offences of theft of electricity punishable under the Act may be compounded. A table of compounding fee is prescribed therein and it clearly states that the appropriate authority may accept from the consumer a sum of money by way of compounding of offences as specified and the effect of payment would be that the criminal proceedings would stand terminated and would amount to acquittal. Sub-section (4) of Section 152 clearly stipulates the disability clause and provides that compounding of offences would be available to a person only once.

15. At this juncture in relation to concept and the right of compounding, we would like to note that this Section 152 is prima facie enabling provision. By the use of expression "may" as held by the Apex Court in the case of L. Hirday Narain Vs. Income Tax Officer, Bareilly, the Court would readily infer a duty to exercise a power which is in aid of enforcement of a right public or private. In that case, it was dealing with Section 35 of the Income Tax Act which, inter alia, provided that the Assessing Officer may rectify a mistake. The Assessing Officer took the plea that the provision being merely enabling he may or he may not rectify the mistake. The Apex Court negatived the contention and held thus :--

...If a statute invests a Public Officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling, the Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right-public or private-of a citizen..

"May" in the said statute was thus held to be "shall".

16. We may also notice that Section 152 of the Act also provides the disability clause by virtue of sub-section (4) thereof, thus, leaving no discretion upon the authority in the matter except as provided therein. Thus, if in a case application for compounding is made the authority have no option but to accept the same upon payment of fee as specified therein which would result in acquittal. The authority has no discretion to refuse the request for compounding fees made in accordance with the provisions of Section 152 of the Act.

17. Now, we may refer to the procedural aspect of criminal prosecution as envisaged under the Electricity Act, 2003. The offences of theft of electricity, as contemplated u/s 135 of the Act, are to be tried by Special Courts appointed by the State Government with concurrence of the High Court who has to be an Additional District & Sessions Judge. By virtue of subsection (5) of Section 154, as was originally enacted, the Special Court had to determine the civil liability against the consumer in terms of money for theft of energy. Subsection (5) of Section 154 provides that it shall be calculated at the rate two times the tariff rate applicable and for the period of twelve months or the exact period of theft if determined whichever less is. Here, we would like to compare this with Section 126 of sub-sections (5) & (6) of the Act as originally enacted. The calculations are on different parameters. Under sub-sections (5) & (6) of Section 126 for unauthorized user of electricity the rate of calculation is 1-1/2 times the tariff and the period is maximum six months which could be less, if proved by the consumer. Whereas under sub-section (5) of Section 154 the rate is two times the tariff rate and could extend to a period of twelve months or less upon proof by the consumer in relation to theft cases. But, when we come to the provisions of the Electricity Act, 2003 after its amendment by Electricity (Amendment) Act, 2007 with effect from 15.06.2007, we find that sub-sections (5) & (6) of Section 126 have been amended and, now for unauthorised user the calculation has to be based for a period of twelve months unless proved otherwise by the consumer and the rate is twice the tariff rate applicable. As noticed earlier, originally the maximum period was six months and the applicable rate was 1-1/2 times. Similarly, under sub-section (5) of Section 154 of the Act, as now stands amended, the rate is again two times the tariff and the period is twelve months. It has now become obligatory on the Special Court by use of expression "Special Court shall" to make the said calculation.

18. Thus seen, with effect from 15.06.2007, now there is no difference between the calculation of liability in respect of unauthorized user or for that matter in a case of theft.

19. Now, we may refer to sub-section (6) of Section 154 which has remained unaltered. A reference to the said provision would show that if an assessment is made under Section-126 subject to appellate order u/s 127 that would get superseded by the quantification done by the Special Court in terms of sub-section (6) of Section 154 and if the amount as earlier determined u/s 126 and deposited by the consumer was more than what is determined by the Special Court then the amount has to be refunded to the consumer and the amount if determined is higher by the Special Court it is to be recovered as civil debt being a decree of Civil Court.

20. The reason for combining Section 126 and the consequence of Section 135 by virtue of sub-section (6) of Section 154 is that where an unauthorized user is with a dishonest intention proved, it would be subject to what is stated in Section 135, a theft of electricity. Thus, upon detection of dishonest unauthorised user of electricity, the authority has a right to assess the amount u/s 126, subject to adjustment by final determination by the Criminal Court upon prosecution being launched.

21. Here, we wish to point out that the legislative policy and the mandate is that the liability of a person in default either by way of unauthorized use of electricity or by way of theft of electricity is to be determined only by the statutory authorities or the Assessing Officer u/s 126 of the Act and/or Section 154 by the Special Court. Any ipse dixit calculation or averment made In the F.I.R. has no legal sanctity at all because it is well established principle of law that when the Legislature has prescribed a mode for performance of an act then the act can only be performed in the manner prescribed and all other modes are impliedly prohibited.

22. In this connection, we may refer to the decision of the Constitution Bench of the Apex Court in the case of Hukam Chand Shyam Lal Vs. Union of India (UOI) and Others, and, in particular, what is stated in paragraph-18 thereof, the relevant part whereof is quoted hereunder :--

18. It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature...

23. We may also notice one another important change brought by the amendment in the year 2007 which is to be found In Section 126 and Section 135. As noticed earlier, as originally enacted sub-section (4) of Section 126 had a proviso which provided that If a person deposits the amount as assessed u/s 126 then he would be not subjected to any further liability or any action by any authority whatsoever but this proviso has been deleted by the 2007 Amendment Act and instead a proviso has been Introduced along with sub-section (1-A) to Section 135 providing that if a person deposits the assessed amount then without prejudice to the prosecution the electric supply would be restored within 48 hours of such deposit. Here, we would like to point out that again the amount of deposit has to be as per assessment u/s 126 and not on any ipse dixit figure mentioned in the F.I.R. or In the criminal complaint.

24. Thus seen, the scheme of the Act as it now stands is that where unauthorized user of electricity, within the Section 126 of the Act, is detected an assessment is to be made and to be paid by the consumer, subject to appellate remedy as provided u/s 127 of the Act. If it is coupled with dishonest intention which would make it an offence u/s 135 of the Act, being theft of electricity, then again the person would be liable to pay the assessed amount as is required to be assessed u/s 126 of the Act and in the trial before the Special Court, the Special Court has to determine the amount on the same basis that is the same rate and period upon evidence and if the assessment is less than what is assessed u/s 126 of the Act the consumer is entitled to a refund otherwise he is liable to pay it as a civil liability.

25. The provision of compounding as contained in Section 154 is different and distinct from the liabilities as contemplated u/s 126 or for that matter Section 154. This is an independent liability to compound the offence and is a fixed liability irrespective of the quantum of assessment. The only difference is between the Act as enacted and as it now stands after 2007 Amendment is that if earlier assessment was made and it was paid in full then no further action including criminal prosecution could be taken by virtue of the then proviso to sub-section (4) of Section 126 which now stands deleted. Further, now after the 2007 Amendment once even if there is a criminal prosecution and the line has been disconnected upon payment of the assessed amount by virtue of the third proviso to sub-section (1-A) of Section 135, the supply has to be restored. Further under the Act, as originally enacted, the basis of calculation for an assessment u/s 126 and Section 154 was different. In respect of Section 126 it was 1,-1/2 times the tariff rate for a maximum period of six months [Section 126 (5) & (6)], whereas u/s 154 (5) it was two times the tariff for a period of 12 months or less as the case may be. But, now under the amended provisions both the calculations are on the same basis of twice the tariff rate and for a period of 12 months subject to consumer proving a shorter period.

26. Thus seen, Section 126, Section 135, Section 152 and Section 154 of the Act operate in different and distinct manner. The liability to compound is independent and distinct of assessment made in terms of Section 126 of the Act which is ultimately subject to assessment in terms of Section 154(5) of the Act.

27. Thus, having examined the scheme and provisions of the Act, the effect of amendment in the year 2007, our answer to the referred questions would be that deposit of arrears and penalty, as assessed u/s 126 of the Act, does not amount to acquittal by virtue of compounding as contemplated u/s 152 of the Act. Compounding application has to be separately made with the deposit of compounding fee as stipulated u/s 152 of the Act and only upon payment thereof the offence can be said to be compounded resulting in acquittal and not otherwise.

28. A word of caution before closing. As we have noticed in respect of the present case, by virtue of Annexure-3 to this application a bill was served on the consumer showing it to be an F.I.R. bill which the consumer paid and the receipt also shows that it is a payment in respect of the F.I.R. This has no sanctity in law. The Board is entitled to bill a consumer only in accordance with the tariff and the statute. There is no scope of an F.I.R. bill as we have noted above. It is either billing regularly as per tariff or punitively u/s 126 and/or Section 154 (5) as the case may be. There is no fourth option. On threat of prosecution the Board cannot realize any amount which is not authorized or sanctioned by law.

29. Accordingly, we are of the view that the judgments of this Court, inter alia, in the case of K.N. Ram @ Kedar Nath Ram Vs. The State of Bihar and Another, , Sanjay Kumar Yadav and Another Vs. The State of Bihar and Another, . Vimala Prasad, Proprietor Hotel Swagatam, Exhibition Road, Patna Vs. The Bihar State Electricity Board and Others, . Sri Anant Kumar Vs. The State of Bihar and Others, and Prabhash Kumar Vs. The State of Bihar and Bihar State Electricity Board, , which merely hold that as the delinquent consumer has paid the punitive amount of loss as mentioned in the F.I.R. or assessed u/s 126, the prosecution cannot continue, do not lay down the correct proposition of law as in absence of compounding fee being paid as contemplated u/s 152 the offences cannot be compounded. Those lines of decisions are disapproved and consequently overruled.

30. While doing so, we concur with and approve the decisions of this Court taken in the case of Kamaljeet Singh v. The Bihar State Electricity Board & others, since reported in 2010 (3) PLJR 514, M/s Zee Saheb Cosmetic Zone through its Proprietor Mr. Rajiv Ranjan Gupta v. The Bihar State Electricity Board & others, since reported in 2010 (4) PLJR 863, S.K. Food Product Vs. The Bihar State Electricity Board and Others, and Md. Sakil Ahmad Vs. Bihar State Electricity Board and Others, which is in consonance with the scheme of the Act as found by us above.

31. The reference to Division Bench having been answered accordingly. Let the matter be placed before appropriate single Bench of this Court for final disposal in accordance with the observations made by the Hon''ble Judge referring the matter to Division Bench by order dated 28.04.2010 in this case.

Ashwani Kumar Singh, J.

I agree.

Mosmat Swaran @ Swaran Manraw Vs State of Bihar and Another

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