HARBHAJAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS judgment will dispose of Criminal Misc. Nos. 17197-M and 17199-M of 1994 as both the petitions have arisen out of the common F.I.R. No. 10 dated February 5, 1993 under Section 39 of the Indian Electricity Act, 1910 (for short 'the Electricity Act') and Section 379 of the Indian Penal Code, registered at Police Station City, Tarn Taran, District Amritsar. The petitioners have prayed for quashment of the said F.I.R. and the Police report under Section 171 of the Code of Criminal Procedure, 1973, filed before the Sub-Divisional Judicial Magistrate, Tarn Taran on August 24, 1993 and the charges framed by the Magistrate on September 23, 1993.

(2.) THE allegations levelled against the petitioners are that on checking of the electricity meters, installed at the premises of the petitioners, by Flying Squad of the Punjab State Electricity Board on January 25, 1993, the seals thereon were found tampered with. A report was made to the Police by the Assistant Executive Engineer, Rural Sub-Division, Punjab State Electricity Board, Tarn Taran, to the effect that the petitioners were caught committing theft of electricity, which was a case of electricity theft under Section 39 of the Electricity Act. A case was registered against the petitioners on the basis thereof. On the basis of the F.I.R., challan under Section 173, Code of Criminal Procedure, 1973, was submitted before the Sub Divisional Judicial Magistrate, Tarn Taran. The petitioners were charged for the offence falling under Section 39 of the Electricity Act and Section 379 of the Indian Penal Code, by the learned Magistrate.

(3.) I find merit in the contention raised by the learned counsel for the petitioners. It has been held in Ram Chandra Prasad Sharma and others v. State of Bihar and anothers AIR 1967 Supreme Court 349, by their Lordships of the Supreme Court that before raising "a presumption under Section 39 of the Electricity Act that there is a dishonest abstraction of energy, the presence of a perfected artificial means which will render abstraction of energy possible has to be established by the prosecution. It is further necessary to show that there was a dishonest abstraction, consumption or use of electrical energy by the accused person. It is not sufficient to say that a meter has been tampered with and that it is under the control of the accused person." Further it has been held by the Hon'ble Supreme Court in Jagannath Singh v. H. Krishna Murthy and another, AIR 1967 Supreme Court 947, that the existence of tampered meter does not amount to such artificial means for the abstraction of electricity as would make it an offence under Section 39 of the Electricity Act. In this view of the matter, no offence under Section 39 of the Electricity Act read with Section 379, Indian Penal Code, is made out against the petitioners.