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1996 Supreme(Pat) 151
PATNA HIGH COURT
S.K.Chattopadhyaya, J.
Om Prakash Kapila
Versus
State Of Bihar
Criminal Writ Jurisdiction No. 91 of 1989 ;
Decided On : MARCH 12, 1996
Electricity is property and theft of electricity is an offence under the Indian Penal Code, even though it is not specifically mentioned in the Code.
Headnote:
CRIMINAL LAW - Quashing of FIR and criminal proceedings - Petitioners, owner and Chief Executive Officer of a company, accused of conspiring with Board officials to manipulate meter readings, resulting in theft of electrical energy - Petitioners challenge FIR and proceedings, arguing no prima facie case, not public servants, electricity not property, no dishonest abstraction, no prosecution by Electrical Inspector, company not prosecuted - Court holds FIR discloses offence, petitioners' status as public servants not relevant, electricity is property, dishonest abstraction alleged, informant is aggrieved person, company not necessary party - Petitions dismissed.
Fact of the Case:
Petitioners, owner and Chief Executive Officer of Usha Alloy Steel Ltd., were accused of conspiring with Board officials to manipulate meter readings, resulting in theft of electrical energy. They challenged the FIR and criminal proceedings, arguing that there was no prima facie case, they were not public servants, electricity was not property, there was no dishonest abstraction, the prosecution was not initiated by an Electrical Inspector, and the company was not prosecuted.
Finding of the Court:
The Court held that the FIR disclosed an offence of dishonest abstraction of electrical energy, even though the term 'dishonest abstraction' was not specifically mentioned. The Court also held that the petitioners' status as public servants was not relevant, as the offence was created by a specific provision of the Electricity Act. The Court further held that electricity is property, as it is a form of energy that can be supplied and consumed. The Court also held that the informant, being the Deputy Superintendent of Police of the Vigilance department of the Board, was an aggrieved person and could initiate prosecution. Finally, the Court held that it was not necessary to prosecute the company in order to proceed against the petitioners.
Issues: 1. Whether the FIR disclosed an offence of dishonest abstraction of electrical energy? 2. Whether the petitioners' status as public servants was relevant to the offence? 3. Whether electricity is property? 4. Whether the informant was an aggrieved person? 5. Whether it was necessary to prosecute the company in order to proceed against the petitioners?
Ratio Decidendi: 1. The Court held that the FIR disclosed an offence of dishonest abstraction of electrical energy, even though the term 'dishonest abstraction' was not specifically mentioned. The Court relied on the definition of 'energy' in the Electricity Act, which includes electrical energy generated, transmitted, or supplied for any purpose. The Court also relied on a Supreme Court decision holding that theft of electricity is an offence under the Indian Penal Code, even though it is not specifically mentioned in the Code. 2. The Court held that the petitioners' status as public servants was not relevant to the offence. The Court noted that the offence was created by a specific provision of the Electricity Act, which does not require the offenders to be public servants. 3. The Court held that electricity is property, as it is a form of energy that can be supplied and consumed. The Court relied on a Supreme Court decision holding that electricity is not movable property, but that theft of electricity is an offence under the Indian Penal Code. 4. The Court held that the informant, being the Deputy Superintendent of Police of the Vigilance department of the Board, was an aggrieved person and could initiate prosecution. The Court relied on a Supreme Court decision holding that a person who is responsible for the management of a company is an aggrieved person for the purposes of initiating prosecution under the Electricity Act. 5. The Court held that it was not necessary to prosecute the company in order to proceed against the petitioners. The Court relied on a Supreme Court decision holding that a person who is in charge of and responsible for the conduct of a company's business can be prosecuted for an offence committed by the company, even if the company itself is not prosecuted.
Final Decision: The Court dismissed the petitions, holding that the FIR and criminal proceedings against the petitioners were valid.
S.K.Chattopadhyaya, J.
1. Invoking the jurisdiction of the High Court under Article 226 and 227 of the Constitution of India, the petitioners have prayed for quashing the entire proceeding as well as the investigation and order issuing warrant of arrest arising out Patna Vigilance P.S. Case No. 5/89 now pending in the court of the Special Judge (Vigilance), Ranchi.
2. As both the writ petitions arise out of the same FIR and similar points are involved they have been heard together and they will be government by this common judgment.
3. During the course of hearing an English translation of the "First Information Report was submitted on behalf of the petitioners from perusal of which it appears that one Mohan Rajak, Deputy Superintendent of Police, CID (Vigilance) of the Bihar State Electricity Board (shortly the Board), opposite party No. 2, lodged it on 16.6.1989. It was expressly averred therein that the petitioners, Brij Kishore Jhawar as the owner and O.P. Kapila as the Chief Executive Officer of the Usha Alloy Steel Ltd. in connivance with the officers of the Electricity Board, motivated manipulation in reading of the meter situated within the premises of the consumer as a result of which readings are recorded less and electrical energy has been thus stolen. The Vigilance department of the Board received a complaint that in collusion with the local officials of the Board the electrical energy consumed in the factory is not correctly recorded and build and every month there have been losses amounting to lacs of rupees. It was also reported that payment which are being made by the Company towards electricity bills, were being made by cheques and were credited to the account of the Board even after two months for which the Board is suffering loss in two ways, namely, the interest for Rs. 40 to 50 lacs and secondly, owning to this payment, the Company gets improper and illegal rebates. A preliminary investigation was made and after completion of the same it transpired that only 33 months during the period of investigation, the Board suffered a loss to the extent of more than four crores of rupees and Usha Alloy Steel Ltd. has gained by that amount. A special Committee was constituted by the General Manager-cum-Chief Engineer of Ranchi Area Board for reading the meters of the grid Sub-sec. connected with and installed in the premises of the Company. The details have been given in the FIR to indicate as to how the investigation revealed that there was constant theft of electrical energy by the Company in collusion with the officials of the Board resulting in the huge loss to the State Revenue. Names of such officials have also been mentioned in the FIR including the petitioners. It was concluded that for the purpose of causing loss to the revenue of the Board and improper financial gain to the Company, the petitioners indulged into criminal conspiracy with the aforesaid officials of the Board. According to the informant due to the aforesaid criminal conspiry and loss to the Board the petitioner and the officials have committed offence under Sections 409, 420, 467, 468, 471, 120-B and 210 of the India Penal Code and Sec. 13(2) of the Prevention of Corruption Act, 1988 and Secs. 39/39-A of the Indian Electricity Act, 1910 .
On the basis of the said FIR Patna Vigilance PS Case No. 5/85 corresponding to Special Case No. 30/89 was registered.
4. Dr. Debi Pal learned Counsel appearing on behalf of the petitioners raised the following points in support of his contention:
(i) So far the allegation for the offences under Secs. 467, 468 and 471 of the Penal Code are concerned, no case has been made out even prima facie to suggest that the petitioners can be held guilty of such offences;
(ii) the petitioners not being the public servants, no offence can be said to have been committed by them under Sec. 13(2) of the Prevention of Corruption Act;
(iii) the offence under Sec. 409 of the Penal Code cannot have any application so far t
