ABHAY TYAGI Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) M .C. Garg, J. has referred this petition for consideration by a larger Bench on the following points:

(2.) THE petition has been filed under Section 482 of the Cr.P.C., for quashing the FIR No. 235/2004 registered at P.S. Seema Puri, at the instance of the 2nd respondent -BSES Yamuna Power Limited on the allegation that on an inspection conducted at the premises of the petitioner it was found that the petitioner had 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 Electricity Act 2003) read with Section 379 of the Indian Penal Code. The inspection was carried on 21st April, 2004 and the complaint was lodged with the police on 13th June, 2004, which has resulted in registration of an FIR. The estimated loss of energy due to the theft of electricity detected during the inspection has been assessed at Rs. 1,46,39,030/ -. The submission of the petitioner is that after the enactment of the Electricity Act, 2003 ('Electricity Act' for short) which repealed the Indian Electricity Act, 1910 as well as Delhi Electricity Reforms Act, 2000, no power was left with the 2nd respondent to file a complaint before the police or to get a FIR registered with respect to the allegations made by the 2nd respondent in the complaint, as no cognizance could have been taken of the alleged offences specified under Section 135 to 138, which are pari materia to Section 39 of the Indian Electricity Act, 1910, except upon a complaint filed by an authorized officer before the Special Court in view of Section 151 of the Electricity Act. Opposing the petition the 2nd respondent relied upon a judgment of A.K. Sikri J in Bimla Gupta Vs. NDPL. reported in : 136 (2007) DLT 521, wherein it has been held that there is no provision in the Electricity Act, 2003 to suggest that cases of theft of electricity cannot originate from an FIR. The learned single Judge, however, observed that in Bimla Gupta's case(supra), the Court has relied upon the judgment of this Court in Sohan Lal Vs. North Delhi Power Limited & Ors.. reported in : 113 (2004) DLT 547 rendered by Sanjay Kishan Kaul, J., which view has been differed by another single Judge S. Ravindra Bhat, J. in Ral Kumar Vs. BSES Yamuna Power Limited. W.P. (C) No. 18912/2006 decided on 18th December, 2006. Further in Bimla Gupta's case(supra), reference was made to the Electricity Rules, 2005 which had not come into force when the FIR in the present case was registered and, therefore, the learned single Judge opined that the correctness of the judgment delivered in Bimla Gupta's case is required to be examined by a larger Bench.

(3.) IN reply, Mr. Sandeep Sethi, learned senior counsel appearing for the 2nd respondent submitted that during a surprise check conducted by the Enforcement Team it was revealed that the petitioner was indulging in direct theft of electricity. Such an offence of theft is punishable with three years of imprisonment besides fine and thus, was a cognizable offence. Since a cognizable offence was committed, it was permissible for the 2nd respondent to lodge a FIR and the police authorities are bound to investigate the same in accordance with law so as to ascertain the persons who are responsible for the said theft and to take appropriate proceedings under the law. He submitted that nothing has been specified under the Electricity Act, which makes the said offence non -cognizable. Since the statute was silent on this aspect as to whether theft of electricity is a cognizable offence or not, the Cr.P.C. needs to be relied upon for the said purpose. He also pointed out that in respect of every offence which is cognizable, it is the duty and responsibility of the police authorities to register a FIR and investigate the same. He submitted that Section 151 of the Electricity Act does not create a bar on registration of the FIR and investigation of the case by the police authorities. The bar, if any, is on the court to take cognizance of a case without there being a complaint by the competent person, which stage has not reached as of today. He submitted that the matter was at the investigation stage, when the petitioner approached this Court. Learned counsel submitted that the question of applicability of 2005 Rules does not arise in this case. He maintained that the Sohan Lal's case (supra) has been correctly decided but in this case since the only limited issue is about the registration of the FIR in accordance with the provisions of the Cr.P.C., this Court need not decide the issue of applicability of the regulations to the facts of the present case.