w w w . L a w y e r S e r v i c e s . i n



Gopal Sao v/s State of Bihar

    Decided On, 08 January 2007

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE S.P. SINGH

    For the Appearing Parties: --------



Judgment Text

S.P. SINGH, J.

(1.) Heard learned counsel for the parties By instant quashing application under Section 482 Cr.P.C. the petitioners seek modification of the order dated 26.9.06 passed by the learned session Judge in A.B.P. NO. 3668/06, arising out of Maner P.S. Case No. 175/06 under Section 39/44 of the Indian Electricity Act read with Section 379 of the Indian Penal Code.

(2.) The prosecution case in short is that the petitioners committed theft of electrical energy caused loss of Rs. 15,000/- each to the Board. It was alleged that the petitioners were consuming one kilowatt electrical energy stealthily by tapping wire by main LT line. The petitioners, apprehending their arrest, moved the sessions Judge for anticipatory bail wherein they showed their willingness and readiness to deposit the loss suffered by the Board in instalments. In view of the willingness of the petitioners to deposit loss suffered by the B

Please Login To View The Full Judgment!

oard, the learned sessions Judge allowed privilege of anticipatory bail on deposit of Rs. 5,000/- at the first instance within a month and thereafter to deposit remaining Rs. 25,000/- in five instalments.

(3.) The petitioner now seek modification of the abovementioned order. In so much so that they want to deposit a lesser amount of Rs. 10,000/- being compounding amount for persons engaged in (sic) using electricity for commercial purposes. In the alternative the petitioners submit that in view of Section 152 of the Electricity Act, 2003 at the most they would be liable to pay Rs. 20,000/- and as 'such Rs. 30,000/- to be deposited as ordered by the learned Sessions Judge be modified to Rs. 20,000/- The petitioners seem to go back on their undertaking and submissions made before the. learned court below. Here in this court, they want to take aid of Section 152 of the Electricity Act, 2003 which reads as follows: 152. Compounding of offences- (I) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the Appropriate Government or any other authorised by it in this behalf may accept from any consumer or person who committed or who is reasonably suspected of having committed an offence of theft of electricity punishable under this Act, a sum of money by way of compounding of the offence as specified in the Table below:

Nature of service

1.

Industrial Service

twenty thousand rupees

2.

Commercial service

ten thousand rupees

3.

Agricultural Service

two thousand rupees

4.

Other Services

Four thousand rupees

(4.) The petitioners' case is that they are consuming electricity commercially and as such they will come under the category 2 of nature of service given in the table and as per the same they are required to deposit Rs. 10,000/- only. AS such prayer is made to modify the total amount to be deposited as per the order of the learned Sessions Judge from Rs. 30,000/- to Rs. 10,000/-or at most to Rs. 20,000/- in respect of both petitioners. It has further been submitted that both brothers ought not to have been made accused of causing loss to the Board separately, As per prosecution case source of tapping energy is from common wire.

(5.) Mr. Mihir Kumar Jha, learned senior counsel for the Board made submissions both on merits of the case as well as on issues raised. He submitted that in regard to the petitioners' submission that two brothers were committing theft of electricity through the same wire and establishment was one, could not be examined and gone into in anticipatory bail application in a threadware manner, on in this modification application in view of the specific allegation against the petitioners in the FIR. He further submitted that further minute details like period from which theft is being committed is also to be gone into us well as kilowatt quantity and the load of the electricity being used over the period. He further submitted that Section 152 referred to above under Chapter 14 under the heading Offence and Penalty is an addition to the assessment under 126 of the Electricity Act, 2003 in Part 12

INVESTIGATION AND EN FORCEMENT He further submitted that it would be useful to quote 126----1, 5 and 6. 1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connection or user, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use. 5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place it shall be presumed that such unauthorised use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place. 6) The assessment under this section shall be made at a rate equal to one and half times the tariff applicable for the relevant category of services specified in Sub-section (5).

(6.) He further submitted that deposit of sum of money by way of compounding of offence is only related to absolving accused of criminal offence and criminal prosecution. However, his liability for being assessed under Section 126 under the heading assessment will still subsist.

(7.) Having given my anxious consideration to the rival contentions as well as object of parts XII and XIV of the Electricity Act, I find that both Sections 126 + 152 of the Act are in addition to and independent of each other and operate in different spheres. Chapter 12 of the Electricity Act, 2003 envisages assessment of electric charge which is payable by a person who indulged in unauthorised use of the electricity through any of the illegal mode in consuming the same, Section 126(3) requires opportunity to be provded to the person concerned to file his objection in regard to such assessment. Section 126(5) states that if assessing officer reaches to the conclusion that there has been unauthorised use of electricity then there would be presumption against offender that he has been making unauthorised use of the electricity continuing for a period of 3 months immediately proceeding the date of the inspection, in case of domestic, agriculture purposes and for a period of six months for all other categories unless the same is rebutted by the officer.

(8.) The case in hand is alleged to be under category of commercial service and as such the prosecutrix in view of Section 126(5) can assume that theft of the electricity is being committed for proceeding six months unless it is rebutted in the assessment proceeding.

(9.) Section 126(6) of the Act provides for impostion of rate equal to one and half times for the relevant category. Section 126 of the Electricity Act is an (sic) code in itself which enumerates in detail the procedure regarding assessment of quantum of amount which in appropriate cases, could be assessed from a period which could date back to six months proceeding the date of inspection. The detail regarding quantity of electricity that may have been pilfered over the period may also vary. In background of aforesaid facts, the amount of theft of electricity would be much more than the compounding amount, shown in the table under Section 152 of the Electricity Act, 2003.

(10.) Thus, the object and scope of Section 126 under part XII and Section 152 compounding of offence under part XIV are independent and in addition to each other. The (sic) Act: envisages both criminal prosecution as well as Fiscal assessment. Section 152 provides an opportunity to the offence for compounding criminal prosecution by paying compounding sum of money mentioned therein in the table. Payment of such compensatory sum absolves one of rigors of criminal trial and penalty imposed therein. This in no way would absolve an offender from paying dues amount to be assessed under Section 126 as if one has been causing theft of electricity since preceeding six months of inspection unless rebutted. Thus mere compliance of Section 152 of the Act, 2003 can not end scuttle or stall the initiation or recourse to Section 126 by the authority under the Act.

(11.) In the instant case, the petitioners showed their willingness and readiness to deposit the loss caused to the Board to the tune of Rs. 15,000/- each and they were allowed privilege of anticipatory bail on the undertaking that: they would deposit the amount in instalments and now the stand of petitioners resiling from their undertaking is not in line of fair practice and norms. However, the petitioners would be at liberty to raise IN APPROPRIATE PROCEEDING all their points regarding quantum of compounding amount and set off of excess amount in respect of compounding of offence, as per its provision.

(12.) In the result this quashing application for modifying the order rated 26.9.06 is dismissed with the aforesaid observations
O R