Crl.M.C.4371-2005 Page 1 of 22 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.M.C.4371/2005 % Reserved on : 07.02.2009 Date of decision : 03.03.2009 ABHAY TYAGI …PETITIONER Through: Mr. Fanish K. Jain, adv. Versus STATE (DELHI ADMN.) & ANR. ...RESPONDENTS Through: Ms. Santosh Kohli, APP. for State Mr. Amar Gupta, Mr. Mayank Mishra, advs. for R-2. CORAM: HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes MOOL CHAND GARG, J. 1. This petition under Section 482 of the Cr.P.C. has been filed by the petitioner for quashing of the FIR No. 235/2004 registered at P.S. Seema Puri, at the instance of the 2nd respondent, on the allegations that on an inspection conducted at the premises of the petitioner it was found that the petitioner indulged in the theft of electricity and, therefore, he was liable to be punished under Section 39 of the Indian Electricity Act 1910 (now, Section 135 of the New Act) read with Section 379 of the Indian Penal Code. The inspection was carried on 21.04.2004 and on the same day the 2nd respondent lodged a complaint which resulted in registration of the FIR. Crl.M.C.4371-2005 Page 2 of 22 2. After conducting investigation the Police filed a report before the Special Judge and summons were issued to the appellant. Thereafter, the petitioner filed the present petition and made the following prayers: i) To quash the FIR No. 235/2004, P.S. Seema Puri, Delhi under Section 39 of Indian Electricity Act, 1910 read with Section 379 IPC and other proceedings emanating out of the said FIR. ii) To pass any other order in favour of the petitioner which this Hon’ble Court may deem fit and proper in the facts of the case may also be passed. 3. It is the submission of the petitioner that after the enactment of Electricity Act 2003 (hereinafter referred to as the New Act) which repealed the Indian Electricity Act 1910 as well as Delhi Electricity Reforms Act 2000 no powers were left with the 2nd respondent to file a complaint before the Police or to get an FIR registered with respect to the allegations made by them in the complaint, as no cognizance could have been taken of the alleged offences specified under Section 135 to 138 which are para-materia to Section 39 of the Old Act except upon a complaint filed by an authorized officer before the Designated Court, in view of Section 151 of the New Act which reads as under: “151. Cognizance of Offence: No Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their Crl.M.C.4371-2005 Page 3 of 22 officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or License or the generating company, as the case may be, for this purpose.” 4. It is also the case of the petitioners that after the enactment of the New Act, DERC (performance standards – metering and Billing) Regulations, 2002 (DERC Regulations) which enabled lodging of a report with the local Police were also repealed in view of Section 185 of the New Act which reads as under: 185. Repeal and saving: (1) Save as otherwise provided in this Act, the Indian Electricity Act, 1910 (9 of 1910), the Electricity (Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory Commissions Act, 1998 (14 of 1998) are hereby repealed. (2) Notwithstanding such repeal,-- (a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act; (b) the provisions contained in sections 12 to 18 of the Indian Electricity Act, 1910 (9 of 1910) and rules made thereunder shall have effect until the rules under sections 67 to 69 of this Act are made; (c) the Indian Electricity Rules, 1956 made under section 37 of the Indian Electricity Act, 1910 (9 of 1910) as it stood before such repeal shall continue to be in force till the regulations under section 53 of this Act are made. (d) all rules made under sub-section (1) of section 69 of the Electricity (Supply) Act, 1948 (54 of 1948) shall continue to have effect until such rules are rescinded or modified, as the case may be; (e) all directives issued, before the commencement of this Act, by a State Government under the enactments specified in the Schedule shall continue to apply for the period for which such directions were issued by the State Government. (3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the States in which such enactments are applicable. (4) The Central Government may, as and when considered necessary, by notification, amend the Schedule. (5) Save as otherwise provided in sub-section (2), the mention of particular matters in that section, shall not Crl.M.C.4371-2005 Page 4 of 22 be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals. 5. The second respondent contested the petition and alleged that despite enactment of the New Act they were not debarred from filing a complaint with the local Police with respect to the theft of electricity inasmuch as punishment prescribed under Section 379 IPC for commission of theft of the electricity is for 3 years and as such it is a cognizable offence. It is submitted that merely because special Courts have been designated to deal with the offences under the Electricity Act, it does not mean that the case cannot originate on the basis of a Police report. It is also stated that legal position would not change and the only difference made is that the police will have to file its report before the Special Court and not before the ordinary court. It is also submitted that the offences under the Electricity Act have to be tried according to the procedure contained in the Cr.P.C. and, therefore, provisions of Chapter XII containing Section 154 Cr.P.C. onward becomes applicable. 6. Arguments were heard in this case at length on 07.12.2009 and following orders were passed. 2. The parties have agreed to confine the lis in this case as to whether the respondents were within their legal rights in registering an FIR in respect of the alleged inspection which act is being questioned/assailed by the petitioner in this petition filed under Section 482 of Cr.P.C. Insofar as other issues are concerned which relates to the validity/authorization of the person who conducted the investigation they need not be gone into by this Court at this juncture and can be raised before the trial Court, if a situation so arises. 3. The written submissions though have been filed by the parties but in view of the arguments which have Crl.M.C.4371-2005 Page 5 of 22 been addressed today they may file three pages note each confining the submission only on the issue of registration of FIR. Two judgments have been cited by the respondents:-i) Sohan Lal Vs. North Delhi Power Ltd. & Ors. 113 (2004) DLT 547 and ii) Bimla Gupta Vs. State & Anr. 136 (2007) DLT 521 which the petitioner wants to distinguish in his note. However, If any other judgment comes to the knowledge of the parties, they may also file the same along with the written note after exchanging the copies with each other. 7. In view of the aforesaid the basic issue to be decided in this petition is as to “whether FIR dated 13.06.2004 could have been registered by the Police based upon the information provided by the respondents regarding the theft of electricity in view of the then prevailing law”. This also gives rise to the second issue i.e. “as to whether cognizance can be taken of an offence under the New Act i.e. Electricity Act 2003 on the basis of a Police report and after the case is investigated by the Police based upon the registration of an FIR and before coming into force of the Electricity Rules 2005.” 8. The learned counsel for the second respondent submits that the aforesaid issue is no more res-integra in view of the judgment of this Court in Bimla Gupta Vs. NDPL 136 (2007) DLT 521 (hereinafter referred to as Bimla Gupta’s case). It is submitted that in the aforesaid case it was held that there is no provision in the electricity Act, 2003 to suggest that cases of theft of electricity cannot originate from an FIR. 9. It has been submitted that the submissions and contentions raised by the petitioner in the instant case, were identical/ similar in all material particulars to those advanced and considered Crl.M.C.4371-2005 Page 6 of 22 before/ by the Court in Bimla Gupta’s case where following contentions(s) were raised and considered in that case: (i) The petitioner has filed this petition under Section 482 of the Code of Criminal Procedure for quashing of the aforesaid FIR and it is that not only the said FIR is bad in law as provisions of Sections 135/138 are per se not attracted, it is an act of mala fide also and without any authority of law. (ii) that Section 135 of the Electricity Act, 2003 is a complete Code and proceedings are to be filed only under this Act alone. Section 135 of the said Act completely bars initiation of proceedings in any other manner, except in the manner that has been provided under the Act. (iii) This provision provides that no Court shall take cognizance of offence punishable under this Act except upon a complaint whereas in the instant case instead of filing complaint, FIR was lodged invoking the provisions of Code of Criminal Procedure which is not permissible. In support of his submission that the Electricity Act, 2003 is a complete Code so far as the matters concerning electricity are concerned, he argued that the penalties of the offence provided under this Act would be deemed to be statutory one. They are, therefore, to be dealt with under the statutory provisions of this Act. (iv) that under Section 151 of the Electricity Act, power of police to investigate the case has been taken away and, therefore, no FIR could be lodged, more so when the Legislature in its wisdom has laid down specific procedure in the Electricity Act and only that procedure had to be followed for taking cognizance of offences prescribed under this Act and no other mode is prescribed in the law 10. After considering the scope and purport of the relevant provisions of the Electricity Act, 2003 viz. Section 135 to 138 (offences including theft of electricity), and Section 151 to 155 as well as the import of Section 4 (2) of the Code of the Criminal Procedure. In Bimla Gupta’s case (supra) it was held: “10.It is apparent from the reading of Section 4 that provisions of the Cr.P.C. would be applicable where an offence under the IPC or under any other law is being investigated, enquired into, tried or otherwise dealt with ……… It is so specifically provided under Section 155 of the Electricity Act also. Thus, it is not a case where any special or different procedure is prescribed. Rather, the procedure contained the code of Criminal Procedure is Crl.M.C.4371-2005 Page 7 of 22 made applicable for the offences to be tried under the Electricity Act as well.” “12………even if Special Court as Electricity Courts are constituted, legal position would not change and the only difference it would make is that the Police will have to file its report before the Special Court and not before the ordinary Court. Therefore, simply because the Special Courts are designated would not mean that the case cannot originate on the basis of an FIR.” “14.Thus, the clear principle which emerges from the aforesaid discussion is that even when a Magistrate is to take cognizance when a complaint is filed before it, that would not mean that the Police cannot take cognizance thereof. “15.It is stated at the cost of repetition that the offences under the Electricity Act are also to be tried by applying the procedure contained in Cr.P.C. Thus, it cannot be said that a complete machinery is provided under the Electricity Act as to how such offences are to be dealt with. In view thereof, I am of the opinion that learned Counsel for the NDPL, is right in his submission that if the offence under the Cr.P.C. is cognizable, provisions of Chapter XII containing Section 154, Cr.P.C. and onward would become applicable and it would be the duty of the police to register the FIR and investigate into the same. Maxim generalibus specialia derogant shall have no application when the provisions are read in the aforesaid manner. Sections 135 and 138 only prescribe that certain acts relating to theft of electricity, etc. would also be offences. It also enables certain persons/parties, as mentioned in Section 151, to become complainant in such cases and file complaint before a Court in writing. When such a complaint is filed, the Court would be competent to take cognizance straightway. However that would not mean that other avenues for investigation into the offence which are available would be excluded. It is mroe so when no such special procedure for trying the offences under the Electricity Act is formulated and the cases under this Act are also to be governed by the Code of Criminal Procedure.” 11. The respondent further submits that the aforesaid extracts from Bimla Gupta’s judgment demonstrate that the issues raised in the present petition are no longer res integra. The ratio deducible from the complete reading of the aforesaid judgment is that there is no prohibition or bar for the registration of FIR relating to offences under Section 135 of the Act (theft of Electricity) and that the provisions of Cr.P.C. are applicable, which Crl.M.C.4371-2005 Page 8 of 22 entails a duty of the Police to register FIR under Section 154 of Cr.P.C. and investigate the same. The ratio of Bimla Gupta’s judgment fully applies to the present case also. 12. Despite the fact that the aforesaid Rules were enacted only on 08.06.2005 i.e. much after the enactment of the New Act and the raid conducted on the petitioner in this case, the second respondent also relied upon Electricity Rules 2005 which entitles the Police to take cognizance of the offences under Section 135 to 138 of the New Act in support of his submissions. 13. It is submitted that prior to the framing of the aforesaid Rules also the respondent was entitled to register FIR with the Local police in cases of theft of electricity under the DERC (performance standards – metering and Billing) Regulations, 2002 (“DERC Regulations”). The mandate of Regulation 25 (v) of the said DERC Regulations clearly provides that the licensee may lodge a report with the local police. Regulations 25 (v) of the DERC Regulations reads as follows: “25. Procedure for booking a case for pilferage of energy (v) In case sufficient evidence is found to establish direct theft of energy, the licensee may lodge a report with the local police along with material evidence including wires/ cable, meter, service line etc….” 14. That DERC Regulations being enacted pursuant to the Delhi Electricity Reforms Act, 2000 are applicable and applied to the facts of the present case by virtue of Section 185 of the Crl.M.C.4371-2005 Page 9 of 22 Electricity Act, 2003 read with Schedule, as well. It is submitted that there is no repugnancy or inconsistency between the Electricity Act, 2003 and the DERC Regulations. In any event questions of alleged inconsistency/ validity and applicability of the DERC Regulations has been considered and decided by this Hon’ble Court in the Judgment of Sohan Lal v. North Delhi Power Limited, 113 (2004) DLT 547. 15. In view of the aforesaid it is submitted that: (i) The issue in the present case is no longer res-integra and is squarely covered by the judgment of this Hon’ble Court in Bimla Gupta’s case. The Ratio of the said judgment applies to the present case. (ii) In view of the provisions of Electricity Act, 2003 particularly, section 135, Section 155 read with Section 4 of the Code of Criminal Procedure, 1973 it is incumbent upon the police to register FIR in cases of alleged theft of electricity and investigate the same as per law. (iii) There is no express bar under the Electricity Act, 2003 which prohibits the police from registering FIR and / or investigating the case of theft of electricity. (iv) The un-amended section 151 of the Act read with Regulations 25 (v) of the DERC (M&B) Regulations 2002 was in force and applicable at the time when the theft was detected in the instant case i.e. April 21, Crl.M.C.4371-2005 Page 10 of 22 2004 (the date of inspection) and June 13, 2004 (Date on which the Police lodged the FIR). The Judgment of this Hon’ble Court in Sohan Lal v. NDPL is conclusive on the point that DERC Regulations were valid and applicable after coming into force of Electricity Act, 2003 and at the relevant time. (v) The Police are competent to register the FIR in the instant case and carry investigations into the alleged theft of the Electricity. 16. Certain facts which are not disputed by both the sides but which are essential to appreciate the controversy raised by them needs reference. 03.11.2000 Delhi Electricity Reforms Act, 2000 came into force 19.8.2002 DERC in exercise of its powers under section 61 framed the DERC (Performance standards, metering and billing) regulation 2002 (DERC Regulations). As per regulations of 25 (v) of the said regulations the respondent no. 2 is entitled to lodge complaint with the local police regarding theft of electricity. 10.6.2003 Indian Electricity Act, 1910, is repealed and electricity Act, 2003 (the Act) is enacted and brought into force. 8.3.2004 Government of NCT of Delhi issued a notification, authorizing officers not below the rank of Junior Engineer dealing with distribution, commercial and enforcement function, in BSES for implementation of the functions, under section 126 of the Act. 21.04.2004 Inspection carried out by officials of the respondent no.2 in the inspection conducted at two premises of the petitioner simultaneously i.e premises under 36/7 and 36/8 Zulfe Bengal, Dilshad Garden, Delhi of the petitioner, during which it was found that the petitioner was indulging in theft of electricity. 30.4.2004 Theft bill for Rs. 14,63,90,30/- raised by the respondent no.2 on the petitioner. 17.5.2004 Civil suit (OS) 650 of 2004 filed by the petitioner against Crl.M.C.4371-2005 Page 11 of 22 respondent no. 2 praying for declaration that the aforesaid theft bill is illegal, null and void. 13.6.2004 Officials of respondent no. 2 lodge complaint with police station Seema Puri, Delhi stating the information recorded in the inspection report and on the basis thereof. Inspection report also annexed to the complaint made to the police. Based on the aforesaid information the police registers FIR NO. 235/2004 under section 39 of the Indian Electricity Act, 1910 read with Section 379 of IPC. On this date as well as the date inspection provisions of the Act read with the DERC regulations were fully in force and applicable. 08.06.2005 The electricity Rules, 2005 (Rules) came into force. Rule 12 of the rules expressly, inter alia, provides that the police can take cognizance of offence punishable under the Act and have all powers as available under the Cr.PC 30.08.2005 The petitioner filed the present petition under section 482 of the Cr.P.C. i.e Criminal Misc. Case no. 4371 of 2005, seeking quash of the FIR. 17. I have examined the judgment delivered in Bimla Gupta’s case. In the aforesaid judgment after quoting provisions contained under Sections 135, 138, 151 and 154 of the New Act, following observations have been made: 8. It is clear that Section 135 speaks about the manner in which the cases of dishonest abstraction of energy have to be dealt with. Likewise, Section 138 also deals with the theft of electricity. Whenever a person is found to have committed offence under Section 135 and/or Section 138, cognizance thereof can be taken by the Court as provided under Section 151 thereof. Section 151 prescribes that Court shall not take cognizance of an offence punishable under this Act (which would include Section 135/138) except upon a complaint in writing made by a person specified therein. A complaint can be filed before the Court as provided under Section 200 of the Cr.P.C. On filing such a complaint procedure that is mentioned in the Sections following Section 200 is to be followed by the concerned Court. The question for consideration is as to whether lodging of the FIR for such an offence is prohibited and filing of the complaint under Section 200 Cr.P.C. is the only mode which is to be followed? Related question which would call for consideration would be as to whether provisions of Section 379 IPC relating to theft cannot be added/invoked at all and for theft of electricity/dishonest abstraction of energy, only the provisions of Section 135 or 138 of the Crl.M.C.4371-2005 Page 12 of 22 Electricity Act can be invoked? 9. Before we answer these questions, let us take stock of the provisions of the Code of Criminal Procedure as highlighted by the learned senior counsel for the NDPL. The Code of Criminal Procedure demarcates the offences into two categories, namely, cognizable and non- cognizable offences. As per Part II of Schedule I of the Code, any offence punishable with three years or more of imprisonment is a cognizable offence. Section 154 of the Code prescribes that in respect of every offence which is a cognizable one, information thereof is to be given to an officer in-charge of a police station, who shall reduce the same into writing. Thus, it is the duty and responsibility of the police authorities to register a First Information Report. Sub-section (3) of Section 154 further obligates the police authorities to investigate the same as per the manner prescribed in subsequent sections and thereafter submit its report to the Magistrate, who is empowered to take cognizance of the offence on police report, under Section 173 of the Code, on completion of investigation. Interpreting the aforesaid provision this Court in the case of Deepa Singh v. State 1998 IV AD (Delhi) 492 held that mode of registration of the FIR was permissible. That was a case relating to the provisions of Delhi Municipal Corporation Act. Violation of Sections 332 and 466-A of the Delhi Municipal Corporation was alleged. The Court held that ordinary Criminal Courts under Section 5 of the Act will have the jurisdiction to deal with such offences and the plea of ouster of jurisdiction of the ordinary Criminal Courts was rejected. It may be noted that Section 467 of the Delhi Municipal Corporation Act is para material with Section 151 of the Electricity Act as that provision also lays down that no Court can proceed to the trial of any offence under Section 332 of the Act except a complaint of the Commissioner, Municipal Corporation of Delhi or any other person authorised by him by general or special order in this behalf. Argument was precisely the same, namely, no complaint had been filed by the Commissioner or any person authorised by him and FIR was lodged with the police and which