This petition is filed by the petitioner under section 482 of Code of Criminal Procedure, 1973, praying to quash the FIR dated 17.06.2004 registered with the GEB Police Station, Rajkot at the instance of respondent No.2 in respect of an offence under section 135 of the Electricity Act, 2003 alleging theft of electricity to the tune of Rs.59,41,910.40 on the ground that there was a tampering of the meter. 2. The relevant facts involved are that the petitioner, a private limited company, had taken High Tension electricity connection from the respondent Electricity Board at its plot No.1006 situated at Veraval GIDC. On 27.11.2002. The electric meter installed at the place of the petitioner was checked by the officers of respondent No.2. Upon the laboratory test, the meter was found to have been tampered with, and ultimately a supplementary bill dated 25.05.2004 for Rs.59,41,910.40 was issued to the petitioner for the theft of electricity. The petitioner challenged that supplementary bill before the appellate committee of the Electricity Board by paying 20% of the bill amount being Rs.11,88,382/-. The appellate committee by its order dated 06/07.10.2004 reduced the supplementary bill amount to Rs.24,36,430.36. That decision of the appellate committee was further challenged before this Court by filing Special Civil Application No.14888 of 2004, in which interim relief was granted. The said petition is stated to have been pending for final hearing.
2.1 In respect of very incident of alleged theft, the respondent Board lodged FIR in the year 2004. Thereupon, the present petition was filed in January 2007. According to the petitioner he came to know about it only when he was arrested in connection with it. It is that F.I.R. which is sought to be quashed in the present petition.
3. Heard learned advocate for the petitioner and learned Additional Public Prosecutor for the State.
4. Various contentions are raised. However, it is not necessary to go into any of them in view of common oral judgment dated 08.08.2011 of this Court in Mahendrabhai alias Manubhai Ravjibhai Bhindi Vs. State of Gujarat & Another [Criminal Misc. Application No.6532 of 2009], in which similar challenge was considered. In that case the applicants – original accused challenged the action of the respondent Electricity Company in filing complaint against them under the Electricity Act, 2003.
4.1 The incident of alleged theft in the case on hand took place on 27.11.2002. On that day the provisions of Electricity Act 2003 were not in force. Prior to the enactment of the Electricity Act, 2003, the Electricity Supply laws were governed by Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commission Act, 1998. The Parliament enacted the Electricity Act, 2003 with a view to consolidate the different laws in relation to electricity supplied. The provisions of the 2003 Act were brought into force with effect from 10.06.2003 except section 121 thereof. The Government of Gujarat, however, issued notification dated 04.07.2003 in exercise of powers under section 172 of the Electricity Act, 2003, which was a transitional provision. In the aforesaid notification, it was declared that the provisions of the Electricity Act, 2003 shall not apply in the State of Gujarat for a period of six months from 10.06.2003. Accordingly, the provisions of the new Act were applied in the State with effect from 10.12.2003 only.
4.2 In Mahendrabhai (supra), this court referred to the law laid down by the Division Bench in Torrent Power AEC Limited v. Gayatri Intermediates Private Limited [2006 (2) GLR 1580]. Therein the court dealt with the provisions of sections 50, 126, 127, 135, 145, 153 and 154 of the Electricity Act, 2003 as also the provisions of Gujarat Electricity Regulatory Commission (Electricity Supply Code and Related Matters) Regulations 2005. Moreover, in Plasto Processors & Anr. v. Gujarat Electricity Board & ors. [2005 (2) GLR 993] also this court had considered the issue of applicability of provisions of the Electricity Act, 2003, The said decision was also referred to in Mahendrabhai (supra).
4.3 Mahendrabhai (supra) further noted that the Gujarat Electricity Regulatory Commission issued notification dated 31.03.2005 framing the regulations called the Gujarat Electricity Regulation commission (Electricity Supply Code and Related Matters ) Regulations, 2005. Regulation 7 thereof contained the provision for assessment under section 126 of the 2003 Act. By notification dated 14.12.2005, an amendment was made in the said Regulations. In view of the order dated 08.06.2005 passed by the Central Government in removing the difficulties regarding integration of provisions in the Electricity Supply Code in respect of theft cases.
5. Mahendrabhai (supra) thereafter observed.
“In view of the aforesaid Government of India Order dated 8th June 2005 and the amendment made by the Gujarat Electricity Regulatory Commission to the Electricity Supply Code w.e.f. 14th December 2005, the controversy no longer survives for the cases detected on or after 14th December 2005, because the clear legal position which now emerges is that assessment to be made by the licensee in theft cases is not governed by the provisions of Section 126 of the Act, but it governed by the provisions of Section 50 read with Regulation 7.6.5 of the Electricity Supply Code as framed by the Gujarat Electricity Regulatory Commission and amended w.e.f. 14th December 2005. Against such assessment, remedy of appeal under Section 127 of the Act is not available to the aggrieved party, but its remedy will be only before the Special Court constituted under Section 153 of the Act which will exercise in its jurisdiction in accordance with the provisions of sub- sections (5) and (6) of Section 154 of the Act.
(para 6) “Learned counsel for the appellants have strongly contended that in view of the provisions of Section 172(b) and in view of the Government Resolution dated 4th July 2003, earlier provisions of the the repealed laws continued to be valid till 9.12.2004 (for a period not exceeding one year from the appointed date which was 10.12.2003 for the State of Gujarat) and therefore the provisions of Section 135 of the Electricity Act, 2003 are not applicable to the present case.”
(para 7)
5.1 It finally held as under:
“In my view, if the alleged incidents of theft were detected prior to the period of coming into operation of Section 135 of the Electricity Act, 2003 and therefore in view of the decision of this Court in the case of Plasto Processors & Anr. v. Gujarat Electricity Board & ors. reported in 2005(2) GLR 993, wherein it has been held that the provisions of Electricity Act, 2003 were not made applicable to the State of Gujarat till 10.12.2004. Therefore, for alleged offences said to have been committed on or before 10.12.2004 the complainant could not have filed the complaint of having committed offence punishable under Section 135 of the Electricity Act of 2003. Further, in the circular dated 12.5.2005 it is provided that for the purpose of assessment of unauthorised use of electricity and theft of electricity detected which have been committed after 10.12.2004, the procedure as laid down under Section 126 of the Electricity Act 2003, should be followed. Therefore, all the respective complaints are required to be quashed and set aside. Rule is made absolute in each of the matters. No order as to costs.”
(para 9)
6. In the present case also since the date of detection of offence of theft is 17.6.2004 i.e. prior to 10.12.2004 section 135 of the Electricity Act, 2003 was not in operation. The complaint alleging offence of theft under that section 135 of the Electricity Act, 2003, therefore could not have been filed on that day. In that view, the present petition is required to be allowed.
7. Accordingly, the petition is allowed and the F.I.R. dated 17.06.2004 being Cr.II No.886 of 2004 registered before the G.E.B. Police Station, Rajkot Zone (copy of which is at Annexure A on the record of the petition) is hereby quashed. Rule is made absolute. No order as to costs.
(N.V. ANJARIA, J.) [SN DEVU]