IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.57819 of 2007 BINOD KUMAR JAISWAL, SON OF SRI LAKSHMI PRASAD JAISWAL, RESIDENT OF VILLAGE – NANDLALPUR, P.S. – KAHALGAON, DISTRICT – BHAGALPUR. ………………….. PETITIONER. Versus 1. THE STATE OF BIHAR. 2. SRI NAVIN MANDAL., JUNIOR ELECTRICITY ENGINEER, ELECTRICITY DISTRIBUTION SECTION, KAHALGAON, DISTRICT – BHAGALPUR. ………………….. OPP. PARTIES. ----------- 3. 09.04.2010 Heard the parties. This petition is directed against the order dated 18.04.2007 passed by the Judicial Magistrate Ist Class, Bhagalpur by which the cognizance has been taken under Section 379 of the Indian Penal Code and under Sections 39 and 44 of the Electricity Act in connection with Kahalgaon P.S. Case No. 44 of 2007. The First Information has been lodged against the petitioner for that he was cut for the fault of the electricity by illegal connection by which the Bihar State Electricity Department got a loss of Rs.45,000/- (forty five thousand). The First Information Report was lodged on the basis of theft of electricity on 31.01.2007. Learned counsel for the petitioner submits that he deposited the entire amount of Rs.45,000/- (forty five thousand) vide receipt no. 414499 dated 06.02.2007 which is annexed as Annexure 2 to the Bihar State Electricity Board and in consequent thereupon even bail granted by the CJM by the order dated 08.02.2007 taking notice of the fact about 2007. however, the 2 cognizance has been taken by order dated 18.04.2007. Learned counsel for the petitioner submits that there is provision of the assigning of the offence and if the entire amount which is said to be the Bihar State Electricity Board was lodge having been paid then the offence ought to have been compoundable and no cognizance or prosecution will be proceeded as per Section 152 (3) of the Indian Electricity Act, 2003 as the acceptance of the said amount will have an effect of quitting in the case of the petitioner. Learned counsel for the petitioner submits that he has specifically asserted these facts in petition and even in Annexure – 2. During the argument, learned counsel for the petitioner, however, place the order of the learned CJM passed in the said Kahalgaon P.S. Case No. 44 of 2007 dated 18.04.2007 showing the order of grant of bail taking into consideration the fact, about payment of Rs.45,000/-, however, opposite party no. 2 the informant was noticed in the case. Learned counsel for the State and learned counsel appearing on behalf of the opposite party no. 2, however, present but no counter affidavit has been filed to counter the averment about the payment of Rs.45,000/- and acceptance of the same by Bihar State Electricity Board. Hence, in view of this facts that the petitioner having paid the amount of Rs.45,000/- and acceptance of the amount by Electricity Board will have to effect of acquittal of the case of the 3 petitioner and hence the order taking cognizance and the continuation of the proceeding under the circumstances is misuse of the proceeding of court and this view it supported the judgment relied upon PLJR 2007 (2). Learned counsel for the petitioner hence the order taking cognizance and subsequent periods is hereby quashed and accordingly, the petition is allowed. Kundan (Gopal Prasad, J.)