IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.973 of 2008 1. RAJEEV KUMAR SON OF LATE SITA RAM JAISWAL, RESIDENT OF MOHALLA SAGATPAR, PHULWARISHARIF, P.S. PHULWARISHARIF, DISTRICT- PATNA 2. K.K.L.N. SWAMY, SON OF NARSIMHA ROAD, RESIDENT OF SATTENA PALLI MANDAL, POST ABBURU, DISTRICT- GUNTUR, ANDRA PRADESH AT PRESENT RESIDING AT C/O LAKHANDEO ROY, NEAR ELECTRIC OFFICE, SAKET VIHAR, MITRAMANDAL COLONY, ANISABAD, PATNA-2 Versus 1. STATE OF BIHAR THROUGH THE SECRETARY, DEPARTMENT OF ELECTRICITY AND POWER, BIHAR, PATNA 2. THE BIHAR STATE ELECTRICITY BOARD, THROUGH ITS CHAIRMAN, BAILEY ROAD, PATNA 3. PATNA ELECTRIC SUPPLY UNDERTAKING THROUGH THE CHIEF ENGINEER, MANGALS ROAD, PATNA 4. THE EXECUTIVE ENGINEER, PATNA ELECTRIC SUPPLY DIVISION, DANAPUR 5. PATNA ELECTRIC SUPPLY UNDERTAKING THROUGH THEIR SUBDIVISIONAL OFFICER (ASSISTANT ELECTRICAL ENGINEER) DANAPUR DIVISION 6. SRI RAMESHWAR PRASAD SINGH, ASSISTANT ELECTRICAL ENGINEER, AT PRESENT SUB-DIVISIONAL OFFICER, SUB- DIVISION KHAGAUL, PATNA ELECTRIC SUPPLY UNDERTAKING 7. THE OFFICER-IN-CHARGE, PHULWARISHARIF POLICE STATION IN THE DISTRICT OF PATNA ******** 10 24.01.2011 Heard learned counsels for the petitioner, the State and the respondent Board. Petitioners prays for quashing of the F.I.R. vide Phulwari Sharif P.S. Case No. 302 dated 23rd July, 2008, registered for the alleged offences under section 135 of the Electricity Act, 2003 ( hereinafter referred to as the ‘Act’). It is contended on behalf of the petitioners that the petitioner no.1 had made an application for getting electrical connection in the year 2007 as would be appearing from Annexure-2/IV and since the respondent Board failed to provide electrical connection, they are liable to pay the penalty to the extent of Rs. 1000/- per day under the provisions of sub-section 3 of the section 43 of the aforesaid Act. In order to avoid the payment, Board gave the connection only on 23rd July, 2008 and as such the lodging of the F.I.R. is malafide on the part of the concerned official. Learned counsel further submits that the F.I.R. was drawn on the same day i.e. 23rd July, 2008 when the electrical connection was provided in favour of the petitioner no.1. Besides praying for quashing of the F.I.R., the petitioners have prayed for direction for payment of the penalty to the extent of Rs. 1000/- per day as provided under the Act. It is submitted that the respondent-Board cannot be allowed to withheld the payment of penalty and at the same time prosecute the petitioners as well. It is further submitted that the petitioners were however granted bail in the aforesaid case on the condition of making payment of the amount mentioned in the F.I.R. against both the petitioners in installments. Petitioners are paying the installment which was one of the conditions for grant of bail from the concerned Court below. Mr. Vinay Kirti Singh, learned counsel appearing for the respondent-Board, on the other hand, submits that on perusal of the allegations levelled in the F.I.R. it makes out the offences punishable under section 135 of the Act and the case is being investigated. It is further submitted that from the F.I.R. it would appear that the allegation against the petitioners are to the effect that on the date of occurrence i.e. 22.07.2008 petitioner no.1 was found using electrical energy without having any electrical connection in respect of his commercial establishment i.e. Kaveri Guest House. As regards the petitioner no.2, who was running the office of Nav Bharat Fertilizers, it was found on the date of occurrence that the electrical energy was being used bye- passing the electric meter. As such, both the petitioners were committing theft of electrical energy. It has further been submitted that the claim for penalty, assessing the appropriate amount, if any, can not be adjudicated in the Court proceedings, more so, in absence of foundational facts claiming penalty and its refusal by the respondent-Board. Considering the rival submissions of the parties and on perusal of the F.I.R. it would appear that the allegations are against both the petitioners are of committing theft of electrical energy. Petitioner no.1 was found to be using the electrical energy without having any meter and was using the electrical energy unauthorizedly. As regards the petitioner no.2, it was found that he was using the electrical energy bye-passing the electrical meter for different load of electrical energy causing the revenue loss as indicated in the F.I.R. The contention of the petitioners that electrical connection was given to the petitioner no.1 on 23rd July, 2008 and on the same day the formal F.I.R. was drawn both could not have been done on the same day, can not be accepted as it does not stand to any reason since the allegation of theft of electrical energy was detected on 22nd of July, 2008 and formal F.I.R. was drawn on 23rd July, 2008 cannot be faulted in law. As such, I do not find any merit in allowing the prayer of the petitioners in quashing of the F.I.R. in question. Learned counsel for the petitioner submits that this Court in exercise of powers under Article 226 of the Constitution of India can asses and direct the payment of penalty as provided under the Act. Notwithstanding the merits of the claim, as submitted on behalf of the petitioner, in absence of any foundational facts with regard to such claim the payment of penalty and its refusal by the Board, this Court is not inclined to go examine such claim. However, it will be open for the petitioners to raise the claim for payment of penalty before the appropriate authority/forum with relevant details, which may be considered on its own merit as per law. The writ application stands disposed of with the above observations/directions. Manish/- ( Shailesh Kumar Sinha,J.)