The determination of civil liability is intrinsically linked to the commission of the offence, and a deemed acquittal resulting from compounding precludes the special court from proceeding to determine the civil liability.

The issue for consideration:

1. These appeals raise an interesting but substantial question of law regarding the powers and jurisdiction of special electricity courts in the context of compounding of offence of theft of electricity under Section 152 of the Electricity Act, 2003 (“Act”). The question raised by the Appellant, B.S.E.S. Rajdhani Power Limited (“BRPL”) in all these cases is that, whether, notwithstanding the compounding of the criminal liability of a consumer under Section 152 of the Act, the special court can nevertheless proceed to determine the civil liability in exercise of its powers under Section 154(5) of the Act? Resultantly, it is sought to be urged that the consequences of compounding in terms of Section 152(3) of the Act, i.e., a deemed “acquittal” within the meaning of Section 300 of the Criminal Procedure Code, 1973 (“Cr PC”) will not extinguish the civil liability of such consumer which can be proceeded to be determined by the special court under Section 154(5) of the Act.

Background facts:

2. The facts in all these appeals are more or less similar and, therefore, illustratively the Court refers to the facts in Crl. A. No. 1051 of 2008 (B.S.E.S. Rajdhani Power Ltd. v. Jagat Ram & Anr.). The case of BRPL is that its inspection team undertook an inspection at house No. 375, Badarpur of Respondent No. 1 on 22nd September 2005 and found that Respondent No. 1, who was the user and occupier, had indulged in direct theft of electricity by illegally tapping the BSES LV Mains and proceeded to raise a supplementary theft bill for a sum of Rs. 6,94,412. When that bill was not paid, BRPL filed a criminal complaint No. 244 of 2006 in the Special Electricity Court, Patiala House Courts, New Delhi under Section 135 as well as Section 154(5) of the Act for determination of both the criminal and civil liability respectively of the consumer.

3. Respondent No. 1 was summoned by the Special Electricity Court. At that stage, Respondent No. 1 approached the Deputy Commissioner (“DC”), who was the authorised officer appointed by the Government of National Capital Territory of Delhi, for compounding of the criminal liability under Section 152 of the Act.

4. It appears that in the said proceedings before the DC, BRPL participated and raised objections to the prayer for compounding of the offence under Section 135 of the Act. It was specifically urged that unless the theft bills were paid by the consumer, there should be no compounding of the offence. It was further urged that unless there is a mutual agreement between the person proceeded against for theft and the person from whom the theft was committed (BRPL) “there cannot be any compounding of the offence.” It was urged that any other interpretation of the Act would defeat the object and scheme of the Act.

The order of the Deputy Commissioner

5. A detailed order was passed by the DC on 31st January 2007 in the said application and in several other similar applications holding that Section 152 of the Act gives relief only from criminal liability and that as regards civil liability it has to be separately dealt with under Section 154 (5) of the Act. The relevant portion of the said order reads as under:

“Section 152 read with Section 154(5) makes it clear that the criminal liability and civil liability are two separate matters. Section 152 gives relief from the criminal liability subject to payment of compounding fee decided by the appropriate government or authorized officer in this behalf. Section 154(5) separately deals with the civil liabilities including that of theft of electricity with provisions of penalty. In view of these legal provisions, in my considered opinion, this notified authority has an obligation to give the benefits of Section 152 to Petitioners by accepting compounding fee. The theft bill and any other charges due to the Respondent have to be de