IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 Bail Appl..No. 7915 of 2008(F) ----------------------------------------- (CRIME NO. 622/2008 OF FEROKE POLICE STATION) ................... PETITIONER/ ACCUSED: ----------------------------------- ABDUL JALEEL, S/O.HASSANKUTTY, AGED 38 YEARS, AVUNIKKATU HOUSE, PERUMUGHAM P.O. FEROKE, KOZHIKODE - 673 631. BY ADVS. MR.A.AHZAR, MR.S.KABEER. RESPONDENTS/ STATE: ----------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, FEROKE POLICE STATION, FEROKE. BY PUBLIC PROSECUTOR MR. K.S. SIVA KUMAR. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12/02/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. K.HEMA, J. ---------------------------------- B.A. No.7915 OF 2008 ---------------------------------- Dated this the 12th day of February, 2009 O R D E R This petition is for anticipatory bail. 2. The alleged offence is under Section 379 of I.P.C. and Section 39 of Indian Electricity Act. According to prosecution, on a surprise inspection conducted by Sub Engineer, KSEB along with Anti Theft Squad in 'Family Bakery' on 11.12.2008, theft of electrical energy was detected. This was done by tampering the meter and thereby loss to the tune of Rs.1,77,335.50/- was caused to the Electricity Board. The crime was registered on the very next day, on 12.12.2008. Petitioner is the person, who is in possession of the premises. Hence, a crime was registered against him. 3. Learned counsel for petitioner submitted that the consumer is the petitioner's father and he is no more. It is not mentioned in the mahazar, in what manner the electricity theft is committed. Whether it is because of a faulty meter or because of tampering, is not clear from the mahazar. If it is by a faulty meter, petitioner is not liable for the alleged offence. B.A.No.7915 of 2008 2 Further, petitioner on knowing that there is an allegation of theft of electrical energy, paid the entire amount as per Annexure II receipt. Petitioner has no intention to commit any theft of electrical energy, it is submitted. 4. It is also submitted by learned counsel for petitioner that offence under Section 379 I.P.C. will not lie in the light of the decision reported in Paramasivam V. Union of India (2007(2) KLT 733) especially in the light of the repeal of Section 39 of Indian Electricity Act. In the present Act, Section 135 is the corresponding Section and there is no provision by which the theft of electrical energy is deemed to be theft under the I.P.C. Therefore, offence itself will not lie, it is submitted. 5. This petition is opposed. Learned Public Prosecutor submitted that as per the materials available in the case diary, the meter was tampered and it is not because of faulty meter. The seal was broken and some connections were given to commit theft of electrical energy and it is a deliberate act. The loss caused to the KSEB is very high. The subsequent payment will not wash away the guilt. It is also submitted that under the present Act also, the theft of electrical energy is an offence B.A.No.7915 of 2008 3 under Section 135 and it is non bailable. Therefore, it is not a fit case to grant anticipatory bail, it is submitted. It is also submitted that petitioner's interrogation is required for finding out the manner in which the tampering is done, who are the persons involved etc. On hearing both sides, considering the serious nature of the allegations made, I am satisfied that this is not a fit case to grant anticipatory bail. Whether it is an offence under Section 379 I.P.C. or not, as per Section 135 of Indian Electrify Act, the theft of electrical energy is made an offence and it is a non bailable one. I am satisfied that interrogation of petitioner will be required for ascertaining the facts which are within the exclusive knowledge of petitioner regarding tampering and ownership and possession of the premises etc. However, I make it clear that the refusal of anticipatory bail may not be a ground to refuse bail under Section 437 Cr.P.C., if on consideration of the facts and circumstances of the case learned Magistrate deems it fit to grant bail under Section 437 Cr.P.C. The considerations for grant of bail under Section 437 Cr.P.C. are different from considerations for grant of anticipatory bail, under Section 438 Cr.P.C. The B.A.No.7915 of 2008 4 observations made in this order are only for the purpose of deciding whether anticipatory bail can be granted or not. Therefore, if petitioner surrenders before the Magistrate court concerned and any application for bail is moved, it shall be disposed of by the learned Magistrate untrammelled by any of the observations made herein on merit. On hearing both sides, the following order is passed : i) Petitioner shall surrender before the investigating officer or before the Magistrate court concerned and co-operate with the investigation. Whether he surrenders or not, police is at liberty to arrest him and proceed in accordance with law. ii) No further application for anticipatory bail by petitioner in this crime will be entertained by this court. The petition is dismissed. K.HEMA, JUDGE pac