ADITYA KUMAR TRIVEDI, J.:–Taking into account the question involved at an earlier occasion there was direction for analogous hearing of Cr.W.J.C. No. 23/2006 as well as the present Cr.W.J.C. No. 269/2008 but as the learned counsel for the Vigilance conceded over application of ratio decided by the Division Bench of our own High Court reported in 2011 (1) PLJR 1064, hence Cr. Writ No. 23/06 was allowed in terms thereof (whole brief has been filed by way of supplementary affidavit).

2. As the learned counsel for the Vigilance submitted that the ratio decided by the aforesaid Division Bench is not applicable so far present writ is concerned. Hence, there has been full-fledged hearing of instant writ petition.

3. Petitioners, who happen to accused of Vigilance P.S. Case No.21/03 leading to registration of Special Case No.15/03 registered under Section 120B, 201, 379 IPC read with Section 7, 13(1) (C)(D) (i) (ii), 13 (2) of the P.C. Act, 39, 44 of Indian Electricity Act has prayed for quashing of the same.

4. Prem Kumar Singh an Electrical Engineer who was one of the members of Vigilance filed a written report disclosing therein that there has been theft of electricity by Balmukund Concast Limited, Bihta, Patna and on account thereof the Electricity Department has incurred loss of Rs.7,63,13,272.46/- in connivance with other Electricity Department officials whose name stood figured.

5. Manifold argument has been raised on behalf of the petitioner in support of their contention. The first and foremost argument happens to be that after Division Bench decision of our own High Court as reported in 2011 (1) PLJR 1064 it has specifically been held that after repealing of old Act and substituted by Electricity Act, 2003, Vigilance has got no right to institute a case for electric theft. Hence, the institution of present case on the basis of written report submitted by one of the members of the Vigilance Committee and its continuance, if so, permitted, will be in utter disregard of the finding concluded and held by the Division Bench. Apart from this, it has further been submitted that the present Act of 2003 has introduced and distinguished the Act of unauthorized use as well as stealing the electric energy. Stealing of electric energy will be presumed only on the basis of dishonest consumption of electric energy availed by those illegal means which has been classified under Section 135 of the Electricity Act. Otherwise, it will come and will be covered under the heading of unauthorized consumption as prescribed under Section 126 of the Electricity Act 2003 and for that different procedure has been prescribed under Sections 126, 127 of the Electricity Act to realize the amount along with penalty incurred thereupon. Further submitted that from the written report it is evident that none of the ingredients so prescribed under Section 135 of the Electricity Act, 2003 is visible and therefore, no prosecution is liable to be proceeded with. Further submitted that when there happens to be special case covering the particular area then under such situation that Special Act will prevail upon the other Act. Consequent thereupon the practice and procedure so prescribed under the Special Act has to be followed while dealing with the issue. As such, the Electricity Department could not escape to follow the procedure prescribed under Electricity Act, 2003. Also relied upon decisions reported in 1. 1971 SC 520, 2. 1984 (2) SCC 500, 3. 2011 (3) PLJR 1, 4. 2012 (1) PLJR 476, 5. Bihar Local Law, Vol-13, 6. Spectrum of CBI, 7. Electricty Act, 8. P.C. Act & Electricity Tarrif & Cr.P.C. 9. 1961 SC 1170, 10. 1988 SC 912, 11. 2011 (1) PLJR 1064, 12. 2007 (12) SCC 1, 13. 1998 (5) SCC 749, 14. 2008 (6) SCC 1, 15. 2011 (3) SCC 1, 16. 2011 (10) SCC 357, 17. 2011 (10) SCC 610, 18. 2010 (13) 334, 19. 1982 (1) SCC 561, 20. P.C. Act, 21. Electricity Act, 22. 1961 SC-1176, 23.1988 SC 912, 24. 2011 (1) PLJR 1064, 25. 2007 (12) SCC 1, 26. 1998 (5) SCC 749.

6. Learned counsel f

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