IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.15725 of 2007 SATYA NARAYAN PRASAD SINGH Versus STATE OF BIHAR ----------- For the petitioner: Mr. Devendra Kr. Sinha, Sr. Advocate & Mr. S.Kumar Advocate For the State: Mr. C. Jawahar, APP -------- 5 30.4.2009 Heard learned senior counsel for the petitioner and learned APP for the State. A petition on behalf of the petitioner filed under section 239 of the Cr. P.C. has been dismissed by learned Judicial Magistrate, Begusarai vide order dated 12.2.2007. The said order which is rejected the prayer of discharge is being challenged on many a grounds in this application. The short facts are that the petitioner is a retired government servant and on his retirement he was living in the rented house owned by one Chandra Kumar. When he realized that theft of power is being committed by the landlord and the energy is being drawn illegally he felt concerned as a retired civil servant. He informed the higher authority so that suitable action could be taken. The above fact has been reflected in annexure-2 of the application. Soon thereafter a raid had been carried out on 9.11.2001 and an FIR came to be instituted against Chandan Kumar as well as against the present petitioner on the ground that even in the tenanted portion where he was living energy was being drawn illegally. Petitioner seems to have been arrested by the raiding party and subsequently released on bail. The landlord - 2 - Chandan Kumar had escaped from the house and therefore he could not be arrested. Based on the FIR a case under section 379 of the I.P.C. and sections 39/44 of the Indian Electricity Act was instituted and a proceeding in the court below was initiated. A petition was filed by the petitioner in the court below stating therein that the substantive offence under section 379 of the I.P.C is not made out and there is no material to proceed against the petitioner and he should be discharged. But the court below by the impugned order has held it otherwise. Learned senior counsel representing the petitioner submits based on a decision rendered by the Hon’ble Supreme Court in the case of Avtar Singh vrs. State of Punjab ( AIR 1965 SC 666) no ingredients of sections 378 or 379 could be read in the offence under the Indian Electricity Act because the provisions contained in sections 39 and 44 are not penal provisions which constitute substantive case under the Indian Penal Code. Only other matter therefore requires to be considered is whether the court below can proceed in view of the said decision for prosecution of the petitioner under section 379 of the I.P.C. He also submits that even in the FIR there is nothing to indicate that the petitioner had in any manner acted and was drawing power illegally from the service connection. The only thing alleged against in the FIR is that the power was being supplied to tenant, the connection of which stood in the name of landlord. - 3 - Keeping the legal submission made as noted above the petitioner has made out a case for interference. The impugned order dated 12.2.2007 passed by Sri R.S. Pandey, Judicial Magistrate, Begusarai passed in GR Case no. 2640 of 2001 is hereby quashed. This application is accordingly allowed. RPS (Ajay Kumar Tripathi,J.)