JUDGMENT [ENTITY], J.
1. The present petition filed under [SECTION] of the [ACT] (hereinafter referred to the "Code") for quashing of an FIR registered under [SECTION] of the [ACT] and [SECTION] of the [ACT] filed by the petitioner [ENTITY] was originally heard by a Learned Single Judge of this Court. The FIR in question was sought to be quashed by the petitioner on the ground that a penalty has been imposed and realised from the petitioner by the Electricity Board and, thereafter, subsequently there was no justification to proceed with the FIR. Before the learned Single Judge reliance was placed upon a Single Bench judgment of this court in [PRECEDENT]. The learned Single Judge expressed his disagreement with the view taken in [PRECEDENT]'s case (supra) by observing that the proceedings for recovery of the penalty are quite different from a criminal liability and a criminal liability could not be wiped out by issuing a circular imposing some penalty for consumption of electricity unauthorisedly. After making the aforesaid observations, the learned Single Judge referred the matter to a larger Bench, that is how the present petition has been placed before us.
2. Certain facts may be noticed:
3. Petitioner [ENTITY] is a Government contractor and on May 13, 1997 the Vigilance Department conducted a raid on the site belonging to the petitioner and found the illegal user of the electricity. On the basis of the aforesaid illegal and unauthorised use of the electricity by the petitioner, the Sub Divisional Officer, OP, Sub Division, Haryana State Electricity Board (hereinafter referred to the "Board"), Israna lodged an FIR No.231 dated May 14, 1997 under [SECTION] of the [ACT] read with [SECTION] of the [ACT] in the Police Station, Model Town, Panipat. A copy of the aforesaid FIR has been appended as Annexure P/2 with the petition. The petitioner was arrested. Subsequently, he was bailed out Vide a communication dated June 16, 1997, the Executive Engineer, PH, Division No.II, Panipat asked the petitioner to deposit an amount of Rs. 18084/- as per the loss assessed by the Vigilance Department. A copy of the aforesaid communication dated June 16, 1997 has been appended as Annexure P/3 with the petition. The petitioner accordingly deposited the aforesaid amount on April 6, 1999 vide receipt No. 252 Book No. 49459. A copy of the aforesaid receipt has been appended as Annexure P/4 with the petition. On investigation of the aforesaid FIR, the Station House Officer, Police Station, Model Town, Panipat presented a report (challan) under [SECTION] of the Code.
4. The petitioner has approached this court through the present petition for quashing of the aforesaid FIR No. 231 dated May 14, 1997 and the police report (challan) submitted in consequence thereof. The main ground on which the quashing of the aforesaid FIR and the police report has been sought is that there was a policy of the Board to the effect that once a penalty was imposed on the consumer with regard to the theft of the electricity, then the aforesaid FIR was to be withdrawn and connection restored. The petitioner has asserted that since he had duly deposited the compensation as assessed by the Board, therefore, after the aforesaid deposit neither the FIR could be sustained nor the criminal proceedings against him could be continued any further. It is also submitted that the continuation of the criminal trial against the petitioner amounted to double punishment and was a sheer abuse of the process of the Court.
5. We have given our thoughtful consideration to the entire controversy and with the assistance of the learned counsel appearing for the parties have gone through the relevant provisions of law and the case law on the subject.
6. Under the provisions of the Code on the registration of the Fist Information Report under [SECTION], the investigation has to be conducted by the investigating agency. On the conclusion of the aforesaid investigation, the Police Officer, Incharge of the investigation, is required to submit a report under [SECTION] of the Code to a Magistrate empowered to take cognizance of the offence. If the Investigating Officer after investigation of the entire matter and from evidence collected on such investigation finds that the material collected by him is not sufficient or there is no reasonable ground of suspicion to justify the forwarding of an accused to a Magistrate, then under the provisions of [SECTION] of the Code, such an Investigating Officer (Incharge of the Police Station) shall release the aforesaid accused on his executing a bond, with or without surety, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of an offence on a police report.
7. In cases where the material collected by the Investigating Officer is sufficient in his opinion or there is reasonable ground to justify the forwarding of an accused to a Magistrate, then such an officer under the provisions of [SECTION] of the Code shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report. The report of the police officer on completion of the investigation, neither of the aforesaid cases, has to be submitted under [SECTION] of the Code. Such a report has to contain the various details as have been enumerated in [SECTION] of the Code. Under the provisions of [SECTION] of the Code, if upon considering the police report and the documents sent with it under [SECTION] of the Code and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused, an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing.
8. Under the provisions of [SECTION] of the Code certain offences punishable under the provisions of the [ACT], mentioned therein, may be compounded by the persons detailed in the third column of that table. Even with regard to the cases which are not compoundable a Public Prosecutor Incharge of a case, may, under the provisions of [SECTION] with the consent of the Court at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried and upon such withdrawal if it is made before a charge had been framed, the accused shall be discharged in respect of such offences and if the withdrawal is made after the charge has been framed, the accused shall be acquitted in respect of such offences.
9. In these circumstances we find that the various provisions in which the criminal prosecution against a person, against whom an FIR has been lodged, can be dropped/ withdrawn is, when a report is submitted under [SECTION] of the Code or when a compounding takes place in accordance with the provisions of [SECTION] of the Code or when court grants a permission to the Public Prosecutor to withdraw from the prosecution of the aforesaid person under [SECTION] of the Code. Additionally if on presentation of the report under [SECTION] and upon consideration thereof, a Judicial Magistrate considers the charge against the accused to be groundless, then the accused is liable to be discharged.
10. Now, let us examine the claim of the present petitioner for quashing of the FIR in this background. It is not in dispute that the Board has issued a circular whereby it had been decided to receive one time compensation and withdraw the case on payment of the said compensation by those persons, who had committed theft of electric energy. The relevant portion of the aforesaid circular has been perused by his and is reproduced below for ready reference:-
"The matter has further been revived and it has been decided by the Board that one time compensation from the consumers of different categories may be charged as per the rates mentioned below, where the theft of energy is detected and the offender comes forward voluntarily to settle and make payment of the amount of compensation.
Sr. No. Category Compensation Charges
1. Domestic Supply Rs. 500/- per KW of sanctioned load.
2. Non-domestic Supply Rs. 1000/- per KW of sanctioned load.
3. Agricultural Supply Rs. 750/- per BMP of sanctioned load.
4. L.T. Industrial Supply Rs. 1000/- per BHP of sanctioned load.
5. H.T. Industrial Supply Rs. 1500/- per KVA of sanctioned contract denied.
The above charges will be as one time compensation payable by the consumer to the HSEB where there is detected and will not be recoverable in using malpractice.
"The F.I.R. will be withdrawn and connection restored only after the deposit of the compensation stated above."
"It has also been decided by the Board that the above criteria may also be applicable to the previous cases which are pending and for which FIRs have been lodged on account of detection of theft/pilferage of energy. The concerned SDOs (OP) may convey the above decision of the Board to such consumers and if the defaulting consumer wished to come forward for a final settlement of the manner, they can do so."
11. A perusal of the aforesaid circular reveals the decision of the Board whereby it had agreed to receive one time compensation from the consumers of different categories, detailed therein on different rates mentioned in the circular, where the theft of energy was committed and the offender comes forward voluntarily to settle and make payment of the amount of compensation. The aforesaid circular also mentions that after the payment of compensation "FIR will be withdrawn."
12. In our considered opinion, the aforesaid circular did mention with regard to deposit of the compensation by an offender of electricity theft and also laid down as a matter of policy that the criminal prosecution will not be pursued any further after the deposit of compensation. However, according to us, the compensation detailed out in the aforesaid circular was nothing more than a matter of reimbursement to the Board for the loss caused to it by the aforesaid theft of electricity. Although it was mentioned in the aforesaid circular that on such deposit of compensation, the FIR would be withdrawn but the aforesaid offer by the Board was no more than a consent for compounding of an offence. However, we find that the offence under [SECTION] of the [ACT] or [SECTION] and [SECTION] of the [ACT] are not such offences which can be compounded by a complainant even with the consent of the Court. In such a situation, the settlement of the aforesaid deposit between a consumer and the board was no more than a compromise on the aforesaid deposit, amongst themselves without any binding effect upon the criminal Court.
13. A few Single Bench decisions have been brought to our notice wherein the view had been taken that as per the aforesaid policy decision taken by the Board to accept one time compensation and to withdraw the criminal case, the FIR lodged by the Board was liable to be quashed we shall notice the aforesaid decisions as follows:
14. In the case of [ENTITY] v. State of Haryana,2 (1997-2)116 P.L.R. 353, it was held by a learned Single Judge of this Court as follows:
"I have heard learned counsel for both the sides. Of curse, after filing of the challan normally, this court will not exercise its jurisdiction under [SECTION] [ACT] to quash the proceedings. But here is a case where the complainant has framed the policy to accept one time compensation for the theft of electric energy and to withdraw the case and, accordingly, has received the compensation from the petitioner under annexure P-2. In such circumstances, the complainant will not support the case of the prosecution and it will be a mere futile exercise to continue the F.I.R. and the consequential proceedings in so far as they related to the petitioner. In view of these compelling circumstances, I deem this to be a proper case where the F.I.R. in question and the consequential proceedings in so far as they relate to the petitioner, should be quashed as no useful purpose will be served,"
15. In the case of [PRECEDENT], the view taken in [ENTITY] case (supra) was followed by another learned Single Judge of this court and the FIR and all consequential proceedings taken thereupon were quashed.
16. A similar view was taken in [ENTITY] v. State of Haryana3, (1999)26 Cr.L.T. 602. In [ENTITY]'s case (supra) the following observations were made by the learned Single Judge:
"The counsel for the petitioner contended that the petitioner has paid compensation under Annexure P2, dated 12.11.97 and, therefore, claims that in view of the policy aforesaid the State should have withdrawn from the prosecution which they have not done, The learned counsel for the State of Haryana, on the other hand, submitted that compensation may have been paid by the petitioner to the Haryana State Electricity Board in lieu of unnecessary enrichment which he made at the cost of Haryana State Electricity Board but he must account for his act which is a crime before the criminal court! Since the petitioner has paid compensation to the Haryana State as asked for by them, this FIR should be quashed as continuing the same and prosecuting him on its basis will be unjust. The object of suing such a party by the Haryana State Electricity Board is that if the Board is compensated by a consumer of electricity who has pilfered the electricity, he should not be vexed before the criminal court. Pilfering electricity impinges upon the electricity revenues. If the Electricity Board has been compensated, there should be no vexation of the consumer before the criminal court So, this [ACT] is accepted and FIR No. 726 of 12.1.97 registered against the petitioner under [SECTION] [ACT] at P.S. City Ambala and the consequential proceedings arising therefrom are also quashed."
17. From the aforesaid perusal of the various judgments of the Single Benches of this Court, we find that, in fact, the circular has been interpreted to mean, as if on the deposit of the aforesaid compensation demanded by the Board, the FIR was to be withdrawn automatically and on the failure on such withdrawal FIR was liable to be quashed. In [ENTITY]'s case (supra) the observations have been made by the learned Single Judge that since the State Electricity Board stood duly compensated for the pilferage of the electricity, thereafter, the consumer should not be vexed before the criminal Court. In our considered opinion, the views taken in [ENTITY] case (Supra) [PRECEDENT]'s case (supra) and [ENTITY]'s case (supra) are not correct and are not warranted by the various provisions of the Code.
18. At this stage, we may notice with advantage the observations made by the Supreme Court in the case [ENTITY] v. Amit J. Bhalla,4 A.I.R. 2001 S.C. 518. The aforesaid case before the Apex Court had arisen out of a complaint under [SECTION] read with [SECTION] of the [ACT]. Upon the refusal of the trial Magistrate to drop the proceedings against the aforesaid accused, he approached the High Court under [SECTION] of the Code. The proceedings were quashed by the High Court. The complainant took up the matter before the Supreme Court of India by filing a Special Leave Petition. During the course of the proceedings in the Supreme Court, the talks for settlement were undertaken. To show his bona fide, the aforesaid accused deposited the entire amount under the dis-honoured cheque in the Court. Subsequently, the talks for settlement failed. However, on the basis of the deposit of the amount of the dishonoured cheque, a plea was raised before the Apex Court by the aforesaid accused that the proceedings were liable to be quashed. The Supreme Court, however, repelled the aforesaid contention and made the following observations:
"So far as the criminal complaint is concerned, once the offence is committed, any payment made subsequent thereto will not absolve the accused of the liability of criminal offence, though in the matter of awarding of sentence, it may have some effect on the Court trying the offence. But by no stretch of imagination, a criminal proceeding, could be quashed on account of deposit of money in the Court. In this view of the matter, the so-called deposit of money by the respondent in this Court is of no consequence."
19. Therefore, the view taken by the various Single Bench decisions of this Court is also apparently contrary to the law laid down by the Hon'ble Supreme Court of India in [ENTITY]'s case supra).
20. As noticed by us above, we find that the criminal proceedings against the accused can be dropped only as per the provisions of the Code and on no other grounds. Since the circular in question does not fall within any of the provisions of the Code, therefore, there is no justification for quashing of an FIR merely on the ground that the compensation assessed and demanded by the Board had been paid by an offender.
21. There is still another angle from which the present controversy can be viewed. The circular in question has been issued by the Board. It might be taken that it is in consonance with the policy of the State Government. Still such a circular or a policy decision of the State Government would by itself not justify putting any embargo on the prosecution. In case of [PRECEDENT], the provisions of [SECTION] of [ACT] came to be considered by the Hon'ble Supreme Court of India. As per [SECTION], no judicial proceedings, if not instituted while the officer was in service whether before his retirement or during his re-employment shall be instituted in respect of a cause of action which arose or the incident took place, more than four years before the institution of judicial proceedings for prosecution. On the basis of the aforesaid provisions, a prosecution which was sought to be launched after the expiry of four years was challenged. It was argued that the aforesaid limitation of four years provided under the aforesaid rules created an embargo for the prosecution of an offence which was more than four years old. Repelling the aforesaid contention, it was observed by the Supreme Court as follows;
"It is not doubt true that the State enjoys plenary power in the matter of prosecution for an offence and if the Government in its wisdom thought it fit that a government servant after his retirement should not be prosecuted for grave misconduct or negligence committed during the period of his service if the cause of action arose or the incident took place more than four years before he institution of judicial proceedings for prosecution, no exception can be taken to that power. But that does not support the construction sought to be placed by employees on [SECTION], namely that it places an embargo on prosecution of Govt. servants, because the third proviso to [SECTION] has not been framed for that purpose but has been framed for a different purpose namely to provide an exception to the power of the government in the matter of withholding or withdrawing etc. of pension of a retired government servant contained in [SECTION]."
22. We find that the situation in the present controversy is almost similar to the one before the Hon'ble Supreme Court in [PRECEDENT]'s case (supra). The circular /policy decision in question had been issued by the Board in exercise of its executive powers. Even the consonance of the Sate Government to such a decision taken by the Board would be in the exercise of the administrative powers. Such an administrative decision cannot be taken to over-rule the statutory provisions contained in the Code. Therefore, we find that the aforesaid circular issued by the Board cannot be utilised by an accused committing the electricity theft, for claiming the quashing of the proceedings on the ground that the compensation as assessed by the Board had been deposited by him.
23. Even otherwise we find that the main purpose of the aforesaid circular (relevant portion whereof has been reproduced by us above) was to provide reimbursement to the Board for the loss suffered by it on account of theft of energy. Of course, on such reimbursement and making good the loss, the Board could always approach and request the prosecution to withdraw from the prosecution under [SECTION] of the Code. On such request having been made to the Public Prosecutor, an application may be filed by him which would be decided by the Court on the consideration of the various factors including the deposit of the money. Of course, the court while deciding any such application would give due weight and consideration to the aforesaid deposit of compensation by the offender and the circular issued by the Board. However by any stretch of imagination it could not be taken that the mere deposit of such compensation could confer any right upon an offender to seek the quashing of the FIR itself.
24. Thus, we find ourselves completely unable to subscribe to the view take in various Single Bench judgments noticed above, viz [ENTITY] case, [ENTITY]'s case and [ENTITY]'s case and with utmost respect to the learned Single Judges, overrule the same as not laying down the correct law.
25. On an overall consideration of the entire matter, we hold that in a case of Electricity theft when an FIR has been lodged against an offender under [SECTION] of the [ACT] and Sections [SECTION] of the [ACT] then, even on deposit of the compensation demanded by Electricity Board, an offender accused of the aforesaid offence had no legal right to seek the quashing of the FIR merely on the basis of the aforesaid deposit.
26. Before parting with this judgment we record our appreciation for the able assistance rendered by Shri [ENTITY], Senior Advocate who had been requested to assist the court in the mater.
27. In this view of the matter we find no force in the present petition and the same is dismissed accordingly.
Sd/- [ENTITY], J.