Sadanand Mukherjee, J.
1. This is an application for quashing the proceeding against the petitioner under Section 379 of the Indian Penal Code, Sections 39 and 44 of Bihar Electricity Act, pending before the learned Chief Judicial Magistrate, patna.
2. Both parties were heard.
3. The fact of the case is that the Assistant Electrical Engineer, PESU, Patna conducted a raid on 15.06.2004 and in course of raid it was found that in the houses of this petitioner and that of Mr. Ragunath, Mr. Sudama Prasad and Mr. Jitendra Prasad the theft of power by taking connection with overhead wire was being done. The aforesaid persons were indulged in the said illegal act. It was also found that obstruction, consumption or use of electricity has been dishonestly caused by such consumers. Allegation is that the petitioner used or attempted abstraction or consumption of load of 2 kilowatts and at the relevant time the petitioner was not present in the house, and the wife and children of the petitioner were found at the home, Twenty-five meter p.v. c. blue wire from the premises of the petitioner was seized for the reason that electricity has been tapped or was likely to be used unauthorisedly by this wire.
4. A criminal case against the petitioner and other accused persons was lodged under Section 379 of the I.P.C. and Sections 34 and 44 of the Bihar Electricity Act.
5. It is submitted that even if the entire case of the prosecution is presumed to be correct, no case is made out under Section 379 of the I.P.C, as well as Section 34 and 44 of the Bihar Electricity Act. It is contended that the F.I.R, is not sustainable in the eye of law on the ground that it has been lodged violating the constitutional provisions enshrined in Part-III of the Fundamental Rights. It is contended that under Article 20 of the Constitution of India, no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence.
6. It has further been contended that conviction envisaged under Article 20 of the Constitution contemplates a proceeding before a court of law which means an initiation and starting of proceeding of a criminal nature before a court in accordance with the procedure prescribed in the statute, which creates the offence and regulate the punishment. In this connection Part XIV of the Electricity Act, 2003 creates the offence and regulates the punishment. Section 135 of the Electricity Act, 2003 defines theft of electricity as follows:
135. Theft of Electricity; (1) whoever, dishonestly-
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee ;or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or a allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity,
so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use-
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on
account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity;
Provided further that if it is proved that any artificial means or means not authorised by the Board or licensee exist for the abstraction, consumption or use electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer."
The provision attached with the aforesaid section lays down the extent of fine imposed for such theft of electricity,
7. It appears from perusal of the F.I.R, that the petitioner falls in the first category of offence.
8. It has been submitted that the offence under Section 379 of the I.P.C. is not attracted in respect of dishonest abstraction of the electricity Reliance has been placed on the decision of the Hon'ble Supreme Court in the case of Avtar Singh v. State of Punjab .
The relevant paragraphs laying down the established law is as follows:
Dishonest abstraction of electricity mentioned in Section 39 of the Act cannot be an offence under the Penal Code for under it alone it is not an offence; the dishonest abstraction is by Section 39 made a theft within the meaning of the Code, that is, an offence of the variety described in the Code as theft. As the offence is created by raising a fiction, the section which raises the fiction, namely, Section 39 of the Act, must be said to create the offence. Since the abstraction is by Section 39 to be deemed to be an offence under the Code, the offence so created would entail the punishment mentioned in the Code for that offence. The punishment is not under the Code itself for under it abstraction of energy is not an offence at all.
Section 39 did not extend Section 378 of the Code in the sense of amending it or in any way altering the language used in it. Section 378, read by itself even after the enactment of Section 39, would not include a theft of electricity for electricity is not considered to be moveable property. The only way in which it can be said that Section 39 extended Section 378 is by stating that it made something which was not a theft under Section 378, a theft within the meaning of that section. It follows that if Section 39 did so, it created the offence itself and Section 378 did not do so.
9. Under the aforesaid circumstances Section 379 of the I.P. C. does not have any application so far as the present case is concerned.
10. It has further been contended that the petitioner in compliance of Section 152 of the Act, deposited the amount as assessed by the competent officer for 2 kilowatt and the bills have been annexed as Annexures 2 and 2/1. In this connection attention has been drawn towards Section 152 of the Indian Electricity Act which lays down as follows:
152(2); On payment of the sum of money in accordance with Sub-section(1) any person in custody in connection with that offence shall be set at liberty and no proceeding shall be instituted or continues against such consumer or person in any criminal court
152(3) : That acceptance of the sum of money for compounding an offence in accordance with Sub-section (1) by the appropriate Government or an officer empowered in this behalf shall be deemed to amount to an acquittal within tie meaning of Section 300 of the Code of Criminal Procedure, 1973(2 of 1974).
11. In view of the aforesaid provisions since the amount has been accepted and there is Statutory compounding of offence under Section 152 of the Electricity Act, which has not been rebutted on behalf of the State, cogent material has been furnished at Annexure-2 and 2/1, showing the payment of bill issued by the Bihar State Electricity Bill consequent to the above act of the petitioner, it will be an abuse of the process of the Court to proceed with Section 39 and 44 of the Bihar Electricity Act. Section 379 of the I.P.C. having no application, accordingly, the prosecution so far as the petitioner is concerned, is quashed.
12. Criminal Miscellaneous application is allowed.