2011 Supreme(Pat) 29

PATNA HIGH COURT
Shyam Kishore Sharma and Dinesh Kumar Singh JJ.
Binay Kumar Singh Son Of Late Ram Kripal Singh
Versus
State Of Bihar
Criminal MISCELLANEOUS No. 14332 of 2009 13248 of 2009
Cr.WJC No. 921 of 2008
Decided On : JANUARY 5, 2011

Headnote:Electricity Act, 2003-Sections 126, 135 and 151 read with clause 11.4 of Bihar Electricity Supply Code, 2007- Theft of electricity-Vigilance cell of Electricity Board lodged FIR-Act provides detailed procedure with respect to inspection, seizure and lodging of the complaint-Assistant Engineer and the officer ranking above him authorised to make inspection or to lodge an FIR-Vigilance has no power under section 126 of the Electricity Act to make inspection and come to the conclusion that the unauthorised use of electricity has been made-Vigilance has the power to register cases restricted to curruption matters-Hence any accusation with regard to unauthorised consumption by vigilance has no legs to stand.

       AIR 1976 SC 789-Relied upon.

       Electricity Act, 2003-Section 135, 168 read with Clause 11 of Bihar Electricity Supply Code, 2007- Theft of electricity-Meter was found tampered during inspection-Consumer made a voluntary disclosure which was alleged to have illegally accepted by the accused chairman and others official of the Board-The provision under clause 114 of the supply does not stipulate any pre-condition that if the inspection was done or even if FIR was lodged for electricity theft, then the provision of voluntary declaration cannot be exercised-voluntary declarations are aimed at minimizing the litigation and for increasing the collection of the revenue at earliest point of time-Once the consumer has exercised the option of voluntary declaration under clause 11.4 of the. Supply Code, it cannot be re opened by filing FIR by the Vigilance, In view of the statutory bar under clause 11.4 (c) of the supply code-under clause 11.4 of the Supply Code, the chairman and the other officials were under the statutory obligation to accept the voluntary declaration and raise the bill and after deposit of the bill, the statution immunity began operating under sub clause C of clause 11.4 and this immunity debars the prosecution of the consumer and hence on that score the officials of the Board :an not be allowed to be prosecuted.

       (2002)2 SCC 697 (2003)5 SCC 257-Relied upon.

       Electricity Act, 2003-Section 62 read with clause 17 of Bihar Electricity Supply Code, 2007- Tariff-Tariff Notification gives option to consumer of either to keep one connection for both or to have separate connection for Induction -Furnance and the Rolling Mills, then in case for composite connection two bills cannot be raised hence the accusation of allowing the lower tariff appears to be misconceived.

       Prevention of Corruption Act, 1988- Section 13(1) (d) read with sections 107 and 120 of Indian Penal Code-Theft of electricity-Vague allegation with regard to entire officials of Electricity Board-None of the public servants have been named in the FIR-Section 13(1) (d) of the act makes a public servant liable for committing an offence, if he by corrupt or illegal means or by abusing his position obtained for himself or for any other person any valuable thing or pecuniary advantage-But in the instance case no specific accusation in terms of section 13(1) (d) has been specifically levelled any particular officer of the Board-Since none of the accused are public servant-Prosecution is not maintainable at the behest of vigilance.

       AIR 1977 SC 1772, (1999)6 SCC 559-Relied upon.

       Criminal Trial-Criminal Conspiracy-Criminal conspiracy must lead to action and so long as a crime is generated in the mind of accused but not acted upon, it does not become punishable-What is necessary is not thoughts which may even be criminal in character after involuntary but the offence should have been said to be committed and then only it takes a concrete shape of a crime.

       Electricity Act, 2003-Section 151-Cognizance-Theft of electricity-FIR lodged by vigilance-Act provides the prescribed authority to lodge complaint of theft and unauthorised use of electricity-where the special act covers any specific situation then general Act will not prevail over that-Vigilance cannot usurp the power and lodge the cases under IPC or the provisions of a Electricity Act.

       AIR 1961 SC 1170-Relied upon.

       Electricity Act, 2003-Sections 173 and 174 read with Section 13(1)(d) of Prevention of Corruption Act, 1988- Theft of electricity-Vigilance is empowered to lodge cases for the corruption in the Electricity Department but in this case the allegation is theft of electricity and billing under wrong Tariff-Both the special Acts covers two different spheres of offences-Further Electricity Act inacted subsequently will prevail-In view of non-obstinate clause under sections 173 and 174 of Electricity Act no other provisions of any Act will prevail over it.

       (2001)3 SCC 71-Relied upon.

       Constitution of India-Article 226 and Code of Criminal Procedure, 1973-Section 482-Theft of electricity-quashing -FIR-FIR disclosing no offence-Allegation of theft of electricity become redundant by operation of law-Clause 11.4 of supply code permits voluntary disclosure to a consumer and protection thereof from prosecution accusation is due to misconceived appreciation of provisions of Electricity Act and Supply Code-Both F.I.R. quashed as the factual foundation of both the FIRs are one and the same-Criminal Prosecution can be quashed by High Court under Article 226 also or under section 482 Cr. PC. if no case is made out against accused and is malice.

       AIR 2001 SC 2637, (2002)1 SCC 714, 2009 Cr. L.J. 958 (SC), (1992) Supp 1 SCC 335, (2008)17 SCC 157, (2009)3 SCC 78, (2009)11 SCC 89, (2009)1 SCC 516-Relied upon.