S.S. Nijjar, J.@mdashIn this petition u/s 482 Cr.P.C. a prayer is made for quashing the FIR No.284 dated 15.12.1998, u/s 39 of the Indian Electricity Act, 1910, registered at Police Station, City Narwana and subsequent proceedings arising out of the same.
2. All the petitioners are partners of the firm M/s.Hanuman Oil and General Mill, Patiala Road, Narwana, District Jind (Haryana). This firm has a Large Supply (I) connection since 21.04.1974. The S.D.O. (Operation) visited the Mill premises on 20.11.1998 and prepared the spot billing. This bill was paid in due course. At that time, the S.D.O. (Operation) has ensured that all the seals were intact. This Mill has never been in default of energy charges since the Large Supply connection was granted. However, on 11.12.1998, an Assistant Executive Engineer came to the Mill along with his staff. He has prepared a bogus report to the effect that some of the seals are found to be broken and tampered with on the incoming chamber and P.T.Chamber. After the alleged inspection, the checking report was not given to the petitioners. On the basis of checking report, S.D.O. (Operation), Narwana, made a written complaint to the police at Narwana vide Memo No.3000 dated 14.12.1998, on the basis of which the aforesaid FIR was registered for theft of energy under the section mentioned above.
3. After the investigation, dial Ian has been presented in Court. It is submitted by Mr.R.K.Jain, learned counsel for the petitioners, that the facts mentioned in the FIR, even if they are taken on their face value, do not constitute an offence u/s 379 of the Indian Penal Code. He has further submitted that even in the statement recorded u/s 161 of the Code of Criminal Procedure, no suggestion has been made that any artificial means has been used for abstraction of the electricity by the petitioners for consumption and use. It is submitted that registration of the FIR is an abuse of process of the Court and the same is, therefore, liable to be quashed. In support of the aforesaid submissions, learned counsel has relied on a judgment of the Supreme Court in the case of
4. On the other hand, learned counsel for the State of Haryana has vehemently argued that since challan has already been presented in Court, present petition u/s 482 Cr.P.C. would not be maintainable for quashing of the proceedings.
5. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. For proper appreciation of the submissions made by the learned counsel for the parties, it would be necessary to reproduce Section 39 of the Indian Electricity Act, which is as under:-
Section 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 any artificial means or means not authorised by the licencee exists for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved has been dishonestly caused by such consumer.
6. A bare perusal of the aforesaid section shows that before an offence can be said to be committed u/s 39 of the Indian Electricity Act, it would be necessary to prove dishonest intention and that some artificial means or means not authorised by the licencee exists for the abstraction, consumption or use of energy by the consumer. A perusal of the complaint as also the FIR shows that there are no averments to the effect that the petitioners had used an artificial means for abstraction of the electricity. Therefore, on the basis of the same, no offence has been made out against the petitioners u/s 39 of the Indian Electricity Act. 1910.
7. While dealing with a similar situation, the Delhi High Court in the case of Ramesh Chander v. State of Delhi, 1997 (2) CCC 531, observed as follows:-
Thus, it appears to me that for framing a charge under the above section, the prosecution must, prima facie, establish dishonest abstraction, consumption or use of the energy, in the instant case, the charge talks of discovery of tampered seals of electric meters by the Enforcement Staff on inspection of the petitioner''s factory. The mere existence of the tampered meters is not enough to attract the provisions of Section 39 of the Act. There is no presumption of dishonest abstraction, consumption or use of electric energy on discovery of tampered meters. The presumption u/s 39 will arise if artificial means were employed to abstract, consume or use energy. The Supreme Court in the case of
In Jagarnath Singh v. Krishna Murthy and another, AIR 1967 SC 947, the Supreme Court held that existence of a tempered meter, does not amount to such an artificial means for abstraction of electricity as would make it an offence u/s 39 of the Act.
8. I am of the considered opinion that the aforesaid observations are squarely applicable to the facts and circumstances of the present case. To be fair to the learned counsel for the State of Haryana, it must be noticed that he had submitted that since the challan had been presented in Court, present proceeding cannot be quashed u/s 482 Cr.P.C. The aforesaid proposition is also covered by the observations made by the Delhi High Court which have been reproduced above. In that case, it has been clearly held that the charges cannot be framed u/s 39 of the Indian Electricity Act, 1910, merely on the allegations that there had been a tempering with the meter. The Delhi High Court was also dealing with a petition which had been presented after the charges had been framed. I am of the considered opinion that continuance of these proceedings would amount to an abuse of process of the Court.
9. In view of the above, present petition is allowed. First Information Report No.284 dated 15.12.1998, u/s 39 of the Indian Electricity Act, registered at Police Station, City Narwana, District Jind (Haryana) and consequential proceedings arising out of the same, are hereby quashed.
