Criminal Misc. No. M- 5330 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Misc. No. M- 5330 of 2010 Date of decision:- 30.5.2011 Ram Saran Bhatia ...Petitioner Versus State of Haryana ...Respondent 2. Criminal Misc. No. M- 7209 of 2010 Ram Saran Bhatia ...Petitioner Versus State of Haryana ...Respondent CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Jasjit Singh Bedi, Advocate for the petitioner. Mr. P.S. Virk, DAG Haryana. RITU BAHRI J. This order shall dispose of both of the aforesaid petitions as both have arisen from the same incident. For the sake of convenience, the facts are being taken up from Criminal Misc. No. M-5330 of 2010. The petitioner has sought quashing of FIR No.22 dated 14.1.2006 Criminal Misc. No. M- 5330 of 2010 -2- under Section 135/138 of Indian Electricity Act 2003, registered at Police Station Kotwali, Faridabad and order dated 03.10.2006 (Annexure P-3) passed by the Chief Judicial Magistrate, Faridabad framing of charges and order in the revision dated 12.11.2009 (Annexure P-4) in Criminal Misc. No. M-5330 of 2010 and for quashing of FIR No.21 dated 14.1.2006 under Section 135/138 of Indian Electricity Act 2003, registered at Police Station Kotwali, Faridabad and order dated 03.10.2006 (Annexure P-3) passed by the Chief Judicial Magistrate, Faridabad framing of charges and order in the revision dated 12.11.2009 (Annexure P-4) in Criminal Misc. No. M-7209 of 2010. Brief facts of the case are that the petitioner is owner of plot Nos.17 and 18 situated at Neelam Bata Road, NIT, Faridabad. The petitioner has an electricity connection from the Haryana State Electricity Board, now Dakshin Haryana Bijli Vitran Nigam Limited (DHBVNL). A hotel by the name of Hotel Delite is run in the plots in question. On 3.1.2006, a surprise checking was conducted by the Vigilance Statf of Electricity Board of the Electricity Department. The checking party examined the seals before opening the meter cover of the meter box. The meter was checked thoroughly for the purpose of recording registration of the electric energy consumed. After conducting inspection on 3rd of January, a digging operation was conducted on 6.1.2006. The petitioner was informed that the meter installed in the premises should be removed and replaced with the another meter for the purpose of checking. Subsequently, the meter was removed from there and taken in the custody of the officials of the checking party. A report was prepared that the seal of the meter has been tempered and re-pasted and the screws were not found to be in a particular direction. The petitioner received a notice on 10.1.2006 in which a demand of Rs.31,56,597/- was made towards penalty charges treating the aforesaid report to be constituting an act of theft. Based on the inspection, the Criminal Misc. No. M- 5330 of 2010 -3- SDO (Operation) Sub Division, Faridabad made a complaint to the SHO, Police Station Kotwali, Faridabad and got an FIR No.22 dated 14.1.2006 registered against the petitioner under Section 135 and 138 of the Electricity Act, 2003. Challan has been presented in the Court under Section 173 Cr.P.C. Thereafter, on October 03, 2006 charges have been framed against the petitioner (Annexure P-3) The revision was filed against the order framing the charges has been dismissed on 12.1.2006 (Annexure P-4). Counsel for the petitioner Mr. J.S. Bedi, has argued that as per Section 151 of the Electricity Act that no court could take the cognizance except on a complaint in writing. Reference is made to Section 151 of the Act as under:- “ 151. Cognizance of offences :-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 officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose : [Provided that the Court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under Section 173 Cr.P.C. (2 of 1974) : Provided further that a Special Court constituted under Section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.]” Mr. Bedi has argued that an amendment has been made to Section 151 of the Act w.e.f. 15.6.2007 and the following two provisos have been added :- [Provided that the Court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under Section 173 Cr.P.C. (2 of 1974) : Criminal Misc. No. M- 5330 of 2010 -4- Provided further that a Special Court constituted under Section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.]” Mr. Bedi has further argued that after the amendment the FIR could be registered upon a report of the police under Section 173 Cr.P.C. Thus, before the amendment on 15.6.2007 the Court could not take cognizance of an offence of registration of FIR under the Electricity Act. In the present case, the charges were framed on 3.10.2006 when Section 151 of the Act was not amended. Therefore, the FIR is liable to be quashed on this ground. He has referred to the judgments of this Court in Shri Rajinder Pal versus State of Haryana and others 2008(3) RCR (Criminal) 741, M/s Mahalakshmi Spinners Ltd. And others versus State of Haryana and another 2007(1) RCR (Criminal)387, M/s Shakambari Industries and another versus State of Maharashtra and another 2007(1) RCR (Criminal)600, Babaji Kondaji Garad and others versus Nasik Merchants Co-operative Bank Ltd., Nasik and others AIR 1984 Supreme Court 192, Shish Ram versus Union of India 2005(1) A.D. (Delhi) 507, Dr. H.C. Mehta versus State of Haryana and others 2003(3) S.C.T. 75 and Criminal Misc. No.15719-M of 2005 decided on 22.1.2008. Mr. Bedi has also referred to Rule 12 of the un-amended Electricity Rules 2005, which is reproduced below:- “12. Cognizance of the offence :- (1) The police shall take cognizance of the offence punishable under the Act or a complaint in writing made to the police by the Appropriate Government or the Appropriate Commission or any of their officer authorized by them in this regard or a Chief Electrical Inspector or an Electrical Inspector or an unauthorized Criminal Misc. No. M- 5330 of 2010 -5- officer of Licensee or a Generating Company, as the case may be. (2) The police shall investigate the complaint in accordance with the general law applicable to the investigation of any complaint. For the purposes of investigation of the complaint the police shall have all the powers as available under the Code of Criminal Procedure, 1973(2 of 1974). (3) The police shall, after investigation, forward the report along with the complaint filed under sub-clause (1) of the Court for trial under the Act. (4) Notwithstanding anything contained in sub- clauses (1), (2) and (3) above, the complaint for taking cognizance of an offence punishable under the Act may also be filed by the Appropriate Government or the Appropriate Commission of any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company as the case may be, directly in the appropriate Court. (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every special court may take cognizance of an offence referred to in Sections 135 to 139 of the Act without the accused being committed to it for trial. (6) The cognizance of the offence under the Act shall not in any way prejudice the actions under the provisions of the Indian Penal Code (45 of 1860).” As per rule 12(3) a provision has been made that the police shall investigate and forward the report alongwith the complaint to the court of trial. In view of the fact that the main act was silent for registering of FIR, the rules could not take place of the provisions of main act, therefore, registering of an FIR under Section 151 of the Act was completely barred. Counsel for the respondent Mr. P.S. Virk, DAG Haryana has argued Criminal Misc. No. M- 5330 of 2010 -6- that there was a loss to the Nigam on account of committing theft by the petitioner, which works out of Rs.31,51,897/- and ultimately an amount of Rs.51,12,000/- is to be paid by the petitioner. The petitioner has been found indulging in theft of electricity under Section 151 of Indian Electricity Act. After completion of investigation, challan has been presented and thereafter charges have been framed and now the case is posted for evidence of the prosecution. Since the trial has reached the stage of conclusion on this technical ground, FIR should not be quashed. The petitioner has not impleaded the complainant as a party i.e. DHBVN Hisar, who is the necessary party. The petition is liable to be dismissed on this ground. I have heard counsel for the parties and have gone through the case file carefully. In the present case the FIR was registered under Section 135/138 of Electricity Act 1948. Section 135 provides punishment for theft of electricity whereas Section 138 is punishment for interference in the meters from work of licence. Regarding taking cognizance of the offence under Sections 135/138 of the Act, Section 151 clearly lays down that no Court should take cognizance of those offences except upon a complaint in writing made by the Appropriate Government or Appropriate Commission or Chief Electrical Inspector or Electrical Inspector or Licensee. Thus, the registration of FIR was clearly not permitted by the said provision. In Avtar Singh versus State of Punjab AIR 1965 SC 666, the Hon'ble Supreme Court was seized of a similar situation. At that time Indian Electricity Act, 1910 was in vogue. Section 29 of the said Act was para-materia to Section 135 of the 2003 Act and so was Section 50 of the earlier Act to Section 151 of the new Act. Holding that the object of Section 50 was to prevent prosecution for offences under the 1910 Act being instituted by anyone who chose to do so because the offences could be proved by men possessing special Criminal Misc. No. M- 5330 of 2010 -7- qualifications, it was concluded that the prosecution in respect of that offence would be incompetent unless it was instituted at the instance of a person named in Section 50 of the 1910 Act. Relevant portion of the judgment is reproduced here-in-below :- “We may now refer to certain general considerations also leading to the view which we have taken. First, we find that the heading which governs Ss.39 to 50 of the Act is “Criminal Offences and Procedure”. Obviously, therefore, the legislature thought that S.39 created an offence. We have also said that Ss 48 and 49 indicate that in the legislature's contemplation S.39 provided for a punishment. That section must, therefore, also have been intended to create an offence to which the punishment was to attach. The word 'offence' is not defined in the Act. Since, for the reason, earlier mentioned, in the legislature's view S.39 created an offence, it has to be held that, that was one of the offence to which S.50 was intended to apply. Lastly, it seems to us that the object of S.50 is to prevent prosecution for offences against the Act being instituted by anyone who chooses to do so because the offences can be proved by men possessing special qualifications. That is why it is left only to the authorities concerned with the offence and the persons aggrieved by it to initiate the prosecution. There is no dispute that S.50 would apply to the offences mentioned in Ss.40 to 47. Now it seems to us that if we are right in our view about the object of S.50, in principle it would be impossible to make any distinction between S.39 and any of the sections from S.40 to S.47. Thus, S.40 makes it an offence to maliciously cause energy to be wasted. If in respect of waste of energy S.50 is to have application, there is no reason why it should not have been intended to apply to dishonest abstraction of energy made a theft by S.39. For all these reasons we think that the present is a case of an offence against the Act and the prosecution in respect of that offence would be incompetent unless it was instituted at Criminal Misc. No. M- 5330 of 2010 -8- the instance of a person named in S.50.” In M/s Shakambari Industries and another versus State of Maharashtra and another (2006) 2 Mah LJ 170, it was clearly held that cognizance of offence under Section 135 of the Act could be taken only upon a written complaint made by officer authorized. Similar view has taken by this Court in Jai Jagdembhey Steel Pvt. Ltd. And another versus State of Haryana and others, Crl. Misc. No.10762-M of 2005 decided on 24.5.2006 and in Veer Sagar versus State of Haryana and another, Crl. Revision No.978 of 2006 decided on 14.9.2006. From the latter judgment, relevant observations are reproduced hereinbelow :- “In this case, FIR was registered by the police. In this case the Court could not take cognizance except on a complaint. No complaint had been filed as required under Section 151 of the Act. As such, the taking of cognizance by the Court was bad in law.” Since the 2003 Act has been duly amended and now the provision has been made that the FIR can be registered after investigation by the police. Rule 12(3) of the un-amended Act carried the provision of submission of a police report before the trial Court. This Rule 12(3) was in direct conflict with the provisions of the amended Act. This Court in Dr. H.C. Mehta's case (supra) had an occasion to examine Section 33 of the Medical Council of India Regulations, 1998 Schedule-I in relation to the Haryana Medical Education Rules and held that provisions of the Act were binding and the rules framed by the State in conflict thereof will not be operative. Reference has been made to Dr. Preeti Srivastava versus The State of Madhya Pradesh 1999(4) SCT 133 (SC), the observation in the judgement is as under:- “It is also not correct to say that the judgment in Dr. Preeti Srivastava's case (supra) was only concerned about admission and the same was not applicable to qualifications of teachers. In para 38 of the judgment in Dr. Preeti Criminal Misc. No. M- 5330 of 2010 -9- Srivastava's case (supra), caliber of teaching staff is one of the items mentioned as being covered by Entry 66 of List-I, which has been held to be within the purview of Section 33 of the Medical Council Act. Judgment in Ramesh Chandra's case (supra) relied on by counsel for the petitioner is prior to the judgment in Dr. Preeti Srivastava's case (supra) and being at variance with the view taken in Dr. Preeti Srivastava's case (supra), which is a judgment by Constitution Bench, observation that regulations, framed by Medical Council are only recommendatory cannot be held to be holding the field. In para 51 of the judgment in Dr. Preeti Srivastava's case (supra), it was held that regulations under Section 33 of the Indian Medical Council Act are binding and the rules framed by the State in conflict with the said regulations will not be operative.” The Supreme Court in support of the abovesaid view rely upon the ration of the decision of the Supreme Court in Central Bank of India and others versus Their Workmen, AIR 1960 SC 12 wherein it is provided as under:- “..........We do not say that a statutory rule can enlarge the meaning of Section 10; if a rule goes beyond what the section contemplates, the rule must yield to the statute...........” Mr. P.S. Virk, counsel for the respondent-State has not been able to dispute the settled proposition of law. He submits that since the offence under Sections 135/138 of the Act has been committed by the petitioner, liberty should be granted to the respondent to initiate the complaint, which is the correct form to recover the loss suffered by the Electricity Board (DHBVNL). In view of the above facts, the FIR No.22 dated 14.1.2006 under Section 135/138 of Indian Electricity Act 2003, registered at Police Station Kotwali, Faridabad alongwith all consequential proceedings arising therefrom is quashed. However, liberty is granted to the DHBVNL to initiate complaint as Criminal Misc. No. M- 5330 of 2010 -10- provided under Section 151 of the unamended Act of 2003. The criminal miscellaneous petition is allowed. 30.5.2011 ( RITU BAHRI ) Vijay Asija JUDGE