JUDGMENT :

Heard Mr. Satyendra Narayan Singh, learned Counsel for the applicant and Mr. Mata Prasad, Advocate holding brief of Mr. Baleshwar Chaturvedi, learned Counsel appearing for respondents nos. 3 and 4 and Mr. D.K. Srivastava, learned A.G.A. appearing on behalf of the State.

2. This application has been filed, seeking to quash the proceedings in Criminal Case No. 142 of 2005, State v. Ashraf Ali, under Section 135 of the Electricity Act, 2003 (''the Act of 2003' for short), Police Station Khandauli, District Agra, pending in the Court of the Special Judge (E.C. Act), Agra.

3. The applicant has been reported to the Police through a first information report dated 10.08.2005 by the Junior Engineer, Enforcement Squad, Power Distribution Corporation, who, along with the Executive Engineer and a team of police officers, acting on an information, went over to the premises of a certain M/s. Aftab Ice Factory owned by the applicant Asharaf Ali. The information, on which the enforcement team proceeded, was about theft of electricity by the applicant. A checking of the premises followed, which led to the discovery of a direct line drawn from the 100 KVA transformer to the low-tension line, for the purpose of energizing the ice factory. The team found an effective illegally connected load of 74 H.P. and corresponding theft being committed by the applicant. The applicant is said to have moved away, feigning that he would produce papers. The cable was removed and taken into custody. The members of the public, who were offered to stand witness, declined to do so, citing reasons eschewing enmity.

4. Learned counsel for the applicant has argued that the time when the offence was committed and the crime registered on the basis of which the impugned charge sheet has been filed, that is to say, on 10.08.2005, the offence under Section 135 of the Act of 2003 was not a cognizable offence and only a complaint could be filed. It is argued by the learned counsel for the applicant that the applicant had filed Criminal Misc. Writ Petition No. 10415 of 2005, challenging the FIR that was registered against him. It was connected to a bunch of writ petitions, where the common issue involved was if an FIR could at all be registered for an offence punishable under Section 135 of the Act of 2003, the offence being not cognizable as the Act then stood. The applicant was granted interim stay of arrest vide order dated 06.10.2005. The aforesaid writ petitions came to be heard and decided by a Division Bench of this Court on 15.09.2006 in Mustaq alias Mustafa v. State of U.P. and others, 2006 SCC OnLine All 1430 : (2006) 6 All LJ 257. The following directions were issued :

42. According to us, out of three directions the third one is edging over the others. We cannot dismiss the writ petitions since under this judicial pronouncement we have to hold about legality or validity of declaring theft of electricity non-cognizable offence. If we quash the proceeding, we shall arrive at the same result. Moreover, we are not recommending the police to arrest directly irrespective of taking cognizance by the Court. But if we postpone the arrest and allow the authorities including police to obtain leave or permission for investigation from the Court of competent jurisdiction then the purpose will be subserved.

43. Lot of submissions are made about applicability of Rule 12 of the Electricity Rules, 2005. It is further submitted that there is no provision of making such Rule of investigation and arrest by the police. We have seen the rule making power under S. 176 of the Act. Section 176 gives power to the Central Government to make the rule whereunder we find that some of the rule are specifically made without prejudice to the generality of the rule making power. Therefore, such power exists even under the general rule making power. According to us, question is not the making of such rule but making its effectivity with the true spirit of the Act. The Act, 2003 provides certai