JUDGMENT Amitava Lala, J.
1. All the aforesaid writ petitions are Identically placed and analogously heard, therefore, connected for the purpose of disposal by this solitary judgment, which will govern all the matters.
2. In the prime writ petition vires of Rule 12 of the Electricity Rules, 2005 (hereinafter called as the Rules) is under challenge. But the basic prayers in all the writ petitions are to quash the First Information Report (hereinafter called as F.I.R.) and not to arrest the petitioners on account of alleged theft of electricity. The contention of the petitioners is that the police has no power to arrest them without any cognizance to be taken up by the appropriate court under Section 151 of the Electricity Act, 2003 (hereinafter referred to as the Act). According to us, these are rarest of the rare cases where the Court is genuinely called upon to interfere with the cause of arrest.
3. Since the vires of the Central Rules under the Act is challenged, the Court was pleased to issue notice upon the learned Attorney General of India when, in turn, Dr. Ashok Nigam, Addl. Solicitor General for this High Court was deputed on his behalf and on behalf of Central Government to make submissions. We have carefully considered the arguments advanced by the respective counsel on behalf of all the parties including Union of India, State and Uttar Pradesh Power Corporation (hereinafter referred as the Corporation).
4. Before going into the controversial Rule 12 of the Rules we have to go through the Act at first.
5. Prescription of theft of electricity is available under Section 135 of the Act. The provision is quoted hereunder:
135. Theft of Electricity.-(1) Whoever, dishonestly:
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee ; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted ; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to Interfere with the proper or accurate metering of electricity, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use:
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity ;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further that if it is proved that any artificial means or means not authorized by the Board or licensee exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
(2) Any officer authorized in this behalf by the State Government may:
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity (has been or is being) used unauthorisedly ;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which (has been or is being) used for unauthorized use of electricity ;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under Sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of ah adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.
6. Sub-section (1) as aforesaid deals with nature of dishonesty while Sub-section (2) speaks about taking steps by the State Government in case of necessity. Sub-section (2) starts with the sentence "Any officer authorized in this behalf by the State Government may..." whereas subsection (4) speaks about applicability of the provisions of Code of Criminal Procedure, 1973 (hereinafter called as Cr. P.C).
7. The bone of contention of the argument of the learned Addl. Solicitor General is that since under Section 135 of the Act any officer authorized by the State Government may take steps and since Sub-section (4) provides about applicability of Cr. P.C.. there is no bar to the police being part and parcel of the State in taking necessary action/s including arrest under Section 135 of the Act. He said that the Rule 12 has to be read with Section 135 of the Act but not with Section 151 of the Act which is otherwise disjunctive from the power of police investigation and arrest. Rule 12 of the Rules is as follows:
12. Cognizance of the offence.-(1) The police shall take cognizance of the offence punishable under the Act on a complaint in writing made to the police by the Appropriate Government or the Appropriate Commission or any of their officer unauthorized by them in this regard or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be.
(2) The police shall investigate the complaint in accordance with the general law applicable to the investigation of any complaint. For the purposes of investigation of the complaint the police shall have all the powers as available under the Code of Criminal Procedure, 1973.
(3) The police shall, after investigation, forward the report alongwith the complaint filed under Sub-clause (1) to the court for trial under the Act.
(4) Notwithstanding anything contained in Sub-clauses (1), (2) and (3) above, the complaint for taking cognizance of an offence punishable under the Act may also be filed by the Appropriate Government or the Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be directly in the appropriate court.
(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every special court may take cognizance of an offence referred to in Sections 135 to 139 of the Act without the accused being committed to it for trial.
(6) The cognizance of the offence under the Act shall not in any way prejudice the actions under the provisions of the Indian Penal Code.
8. On a question of the Court, he said that Section 135 read with Rule 12 proceeds at a pre-cognizance stage, whereas Section 151 proceeds at post cognizance stage. Let us know what Section 151 of the Act says:
151. Cognizance of offences.-No Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector of licensee or the generating company, as the case may be, for this purpose.
9. He further said that as per Section 2(d) of Cr. P.C. meaning of complaint is as follows:
(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
Interestingly Explanation thereunder speaks as follows:
Explanation.-A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.
10. According to him, a police officer can be complainant as per the Explanation and lodge a complaint before the appropriate court on behalf of the State after making investigation by virtue of Section 135 of the Act read with Rule 12 of the Rules.
11. Incidentally learned Addl. Solicitor General has very fairly submitted that the Electricity (Amendment) Bill, 2005 dated 20.12.2005 has already been prepare'd by the Central Government proposing necessary amendment in Section 151 of the Act, 2003. Relevant part of the Bill is as follows:
As per the provisions contained in Section 151 of the Act, the offences relating to theft of electricity, electric lines and interference with meters are cognizable offences. Concerns have been expressed that the present formulation of Section 151 stands as a barrier to investigation of these cognizable offences by the police. It is proposed to amend Section 151 so as to clarify the position that the police would be able to investigate the cognizable offences under the Act. To expedite the trial before the special courts, it is also proposed to provide that a special court shall be competent to take cognizance of an offence without the accused being committed to it for trial.
12. We have taken note of all the submissions made by learned Addl. Solicitor General at first because of the reason that he is at the receiving end on the question of vires.
13. Against these submissions let us one by one record the various arguments made by the petitioners, the Corporation and the State. Mr. Dev Brat Mukherjee and Mr. P. K. Tyagi, learned Counsel appearing on behalf of the petitioners alongwith others, made various submissions in respect of their cases. However, the argument of Mr. Madhur Prasad, one of the learned Counsel appearing for the petitioners, has been separated intentionally which will be dealt with later on.
14. Learned Counsel appearing for the petitioners have drawn our attention to Sections 174 and 176 of the Act to Justify the cause. Section 174 of the Act gives an overriding effect whereas Section 176 of the Act gives power of Central Government to make Rules. Section 174 of the Act is as follows:
174. Act to have overriding effect.-Save as otherwise provided in Section 173, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any Instrument having effect by virtue of any law other than this Act.
15. Since there is a saving clause of Section 174 regarding Section 173, the same is also quoted hereunder:
173. Inconsistency in laws.- Nothing contained in this Act or any rule or regulation made thereunder or any instrument having effect by virtue of this Act, rule or regulation shall have effect in so far as it is consistent with any other provisions of the Consumer Protection Act, 1986 (68 of 1986) or the Atomic Energy Act, 1962 (33 of 1962) or the Railways Act, 1989 (24 of 1989).
16. It appears nothing in particular is there in respect of applicability of the Cr. P.C. Ironically no argument has been put forth by either of the parties in respect of the relevance of Section 175 of the Act, which is as follows:
175. Provisions of this Act to be in addition to and not in derogation of other laws.-The provisions of this Act are in addition to and not in derogation of any other law for the time being in force.
17. According to us, special law always prevails over general law. But when the special law gives accommodation to general law, there is no bar in proceeding with it irrespective of existence of such special law. Above section is unique in that way. It is in effect a supplementary law to the general law. Therefore, by virtue of such law one can proceed in accordance with Cr. P.C. unless, of course, he is genuinely prevented by any provision of the Act to that effect. Hence, now we have to enter upon such arena.
18. Mr. Mukherjee, learned Counsel appearing for the petitioners, argued that framing of Rules by the Central Government will be guided by Section 176 of the Act. The law has not given any power to the Central Government to make the rules to provide power to the police to take cognizance of the offence punishable under the Act on a complaint and arrest. Therefore, Incorporation of such power under the Rules is ultra vires in nature. Subordinate legislation cannot travel beyond the Act and deprive of life or personal liberty as enshrined in the Article 21 of the Constitution of India.
19. Mr. W. H. Khan, learned Counsel appearing for the Corporation, has drawn our attention to Section 2(c) and First Schedule of the Cr. P.C. He said that the definition of cognizable offence therein is as follows:
(c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.
20. From the plain reading of Section 2(c) it appears that offences under First Schedule which are cognizable in nature, police can arrest anybody without warrant. In the First Schedule a classification of offences under other laws is prescribed whereunder it appears that the offences punishable with imprisonment of three years and upwards but not more than seven years are cognizable and non-bailable in nature. He said that since under Section 135 of the Act extent of imprisonment can be made upto three years or more, police has every right to arrest a person in connection with theft of electricity without warrant. He said that Sections 4 and 5 of the Cr. P.C. are giving power of trial of offences under the Indian Penal Code and other laws. Section 4 of the Cr. P.C. speaks as follows:
4. Trial of offences under the Indian Penal Code and other laws.-(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, Inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
21. Section 5 of the Cr. P.C. has provided a saving clause which is as follows:
5. Saving. - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
22. Therefore, investigation can be made by the police by virtue of the aforesaid Sections. Cognizance is automatic as per law. Under Section 2(r) of the Cr. P.C. the police report can be filed. The police report means a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173 of the Cr. P.C. There is a procedure for investigation by the police under Section 157 of the Cr. P.C. Section 157 speaks about procedure for investigation whereas Section 190 of the Cr. P.C. speaks about cognizance of offences by the Magistrate.
23. By citing State of U.P. and Ors. v. Babu Ram Upadhya , he contended that Rules made under Statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation. By citing Delhi Administration v. Ram Singh , he said that expression 'dealing with the offences' includes power of Investigation.
24. However, Mr. A. N. Mulla, learned A.G.A. appearing for the State, does not agree with the arguments advanced by Dr. Nigam or Mr. W. H. Khan to that extent. On the contrary, he contended that the word "complaint" under Section 2(d) of the Cr. P.C. and Section 151 of the Act are different. The complaint under Section 2(d) of the Cr. P.C. is a request to the police to take appropriate action against an offender due to causing of alleged offence. Therefore, such word "complaint" cannot be applicable under Section 151 of the Act which is otherwise an application to the Court by the specified person therein for the purpose of taking cognizance. At this juncture Dr. Nigam further added that as per Section 154 of the Cr. P.C. every information relating to the commission of a cognizable offence, if given orally to an officer in-charge of a police station, shall be reduced in writing by him or under his direction, and be read over to the informant for his necessary signature. By citing a Division Bench Judgment in Ram Chandra Maurya v. State of U.P. and Ors. 2003 (3) ACR 2056 : 2003 (2) JIC 478 (All), he said that locus standi of the complainant is a concept foreign to the criminal jurisprudence. The information is good enough for recording the F.I.R. being condition precedent. On the basis of Information it becomes obligatory upon the police to make the investigation in the manner as prescribed under Section 157 otherwise the matter can be placed before the Court. By citing Mohd. Yusuf v. Afaq Jahan (Smt.) and Anr. 2006 SCC (Cri) 460. he said that registration of an F.I.R. involves only the process of entering the substance of the information relating to commission of the cognizable offence in a book kept by the officer in-charge of the police station. There is no particular formula of the complaint. Nomenclature is also inconsequential. By citing Ramesh Kumari v. State (N.C.T. of Delhi) and Ors. 2006 SCC (Cri) 678, he further tried to establish that recording of F.I.R. under Section 154 of the Cr. P.C. is a compelling circumstance.
25. According to us, campus of the dispute is very much crystallized. According to Section 2(1) of the Cr. P.C. "Non-cognizable offence" means an offence for which a police officer has no authority to arrest without warrant. On the other hand as per Section 2(c) of the Cr. P.C. police officer has power to arrest a person without warrant provided the offence falls within the First Schedule or under any other law for the time being in force. It is far more clear from Section 151 of the Cr. P.C., as follows:
151. Arrest to prevent the commission of cognizable offences. -(1) A Police Officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.
(2) No person arrested under Sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorized under any other provisions of this Code or of any other law for the time being in force.
26. Therefore, the crux of the case is whether theft of electricity is a cognizable offence or non-cognizable offence in accordance with the existing law.
27. Before going into the controversy whether the theft of electricity is cognizable or non-cognizable offence, we have to declare and say that stealing of electricity is a social crime. It infringes personal right of the citizens in respect of essential service in all possible manner. Any relaxation to the offender and the persons adding or abeting the offence either within or outside the department, will be premium to dishonesty. Even the police personnels are to be kept under checks and balance by forming special task force, if any, with the control and supervision of both the Union and the State since electricity is placed under item 38, List Ill-concurrent list of the Constitution of India.
28. Generation, supply and maintenance are three important parts of rendering essential service to the people. Only generation cannot ensure uninterrupted supply and eliminate shortage of electricity. Cause of theft has direct impact with the supply and maintenance of electricity. Legislature should not have shut their eyes to make the judiciary helpless. The present stand of the Legislature to place the Bill in the Parliament is absolute necessity which this Court appreciates.
29. Learned Addl. Solicitor General contended that police is bound to register an F.I.R. on the basis of the information of an informant and as a consequential effect start enquiry. According to us, enquiry and arresting somebody by the police without warrant are two different steps altogether. There is no bar to the police to enquire the cause of theft of electricity but for the purpose of arrest one has to take the matter to the appropriate court of competent Jurisdiction to obtain necessary leave or permission. Irrespective of the submission of Mr. Mulla that the word "complaint" is differently placed under Section 2(d) of the Cr. P.C. and Section 151 of the Act, the position cannot be altered. Introduction of Rule 12 of the Rules might be the outcome of urgency but keeping it open in the teeth of amendment of the Act may lead to further controversy. The vacuum which has been created cannot be filled up only by making Rules. Presently police cannot be able to proceed beyond the scope of making enquiry upon a complaint unless, of course, an order is obtained from the court of competent jurisdiction.
30. Incidentally the word "cognizance" under the Rule 12 of the Rules in the place and instead of the word "action" is an unmindful reflection of the draft. The same has to be read as "action".
31. One of the learned Counsel for the petitioners Mr. Madhur Prasad has rightly pointed out that entire dispute can be resolved if the list of the offences and penalties under the Act, 2003 is seen. We find that the theft of the electricity under Section 135 of the Act is shown as non-cognizable. Therefore, when the offence is non-cognizable then the police cannot arrest a person without warrant or without permission from the appropriate court of law. Hence, the submission of Mr. W. H. Khan that the classification of offences under other laws of the First Schedule are cognizable in nature, cannot be sustained. He further argued that intentionally the police has kept the power of arrest outside the purview. In support of his submission he has shown the objects and reasons of making the Act. From the paragraph 4 (XII) of the original Bill formed under the Act it will appear that the provisions relating to theft of electricity have a revenue focus. According to him, it has been intentionally done because electricity is abstract energy for which law of theft cannot be easily codified as cognizable offence.
32. According to us, incorporation of words "revenue, focus" against theft of electricity under the objects and reasons of Introduction of the Act, 2003 cannot minimize the gravity of the situation. We have already experienced that under various revenue laws provisions for both penalty and prosecution are available. It is likely to focus that due to theft of electricity loss of revenue is caused. Under no stretch of imagination loss of revenue due to theft of electricity can be construed a dispute as quasi-civil in nature. Process of electricity production might be generation of abstract energy but when generated and made ready for sale per unit. it becomes commodity. This word is broader term than merchandise and in referring to commence may include almost any article of movable or personal property as per Black's Law Dictionary Sixth Edition. From the same book we get the meaning of the word "Property". The word is also commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate. It extends to every species of valuable right and interest, and includes real and personal property, easements, franchises, and incorporeal hereditaments, and includes every invasion of one's property rights by actionable wrong. intangible property-Property which cannot be touched because it has no physical existence such as claims, interests, and rights. It is a right of the genuine consumers to get uninterrupted supply of electricity as per their requirements. Therefore, such submission is an useless effort to deflect the vision. Useful does not become ineffective by the useless following the maxim utile per inutile non vttiatur. Galloping speed of occurrence of theft of electricity indicates rigour is necessary. Can it be said all the petitioners herein are innocent victim? Yet the Court has to think twice due to existing hesitant legislative intent.
33. Therefore, such clause in the main features of the Bill prepared for the existing Act shall not be read in Isolation but conjointly. The total features of the Bill are given hereunder:
(i) Generation is being delicensed and captive generation is being freely permitted. Hydro projects would, however, need approval of the State Government and clearance from the Central Electricity Authority which would go into the issues of dam safety and optimal utilization of water resources.
(ii) There would be a Transmission Utility at the Central as well as State level, which would be a Government company and have the responsibility of ensuring that the transmission network is developed in a planned and coordinated manner to meet the requirements of the sector. The load despatch function could be kept with the Transmission Utility or separated. In the case of separation the load despatch function would have to remain with a State Government organization/company.
(iii) There is provision for private transmission licensees.
(iv) There would be open access in transmission from the outset with provision for surcharge for taking care of current level of cross subsidy with the surcharge being gradually phased out.
(v) Distribution licensees would be free to undertake generation and generating companies would be free to take up distribution licensees.
(vi) The State Electricity Regulatory Commissions may permit open access in distribution in phases with surcharge for:
(a) current level of cross subsidy to be gradually phased out alongwith cross subsidies ; and
(b) obligation to supply.
(vii) For rural and remote areas stand alone systems for generation and distribution would be permitted.
(viii) For rural areas decentralized management of distribution through Panchayats, Users Associations, Co-operatives or Franchisees would be permitted.
(ix) Trading as a distinct activity is being recognized with the safeguard of the Regulatory Commissions being authorized to fix ceilings on trading margins, if necessary.
(x) Where there is direct commercial relationship between a consumer and a generating company or a trader the price of power would not be regulated and only the transmission and wheeling charges with surcharge would be regulated.
(xi) There is provision for a transfer scheme by which company/companies can be created by the State Governments from the State Electricity Boards. The State Governments have the option of continuing with the State Electricity Boards which under the new scheme of things would be a distribution licensee and the State Transmission Utility which would also be owning generation assets. The service conditions of the employees would as a result of restructuring not be Inferior.
(xii) An appellate Tribunal has been created for disposal of appeals against the decision of the C.E.R.C. and State Electricity Regulatory Commissions so that there is speedy disposal of such matters. The State Electricity Regulatory Commission is a mandatory requirement.
(xiit) Provisions relating to theft of electricity have a revenue focus.
34. One of the main features of the Bill is "obligation to supply". How such obligation will be fulfilled unless and until theft is stopped? Hence, revenue focus in respect of theft of electricity means theft should be stopped, if not, minimized to earn more revenue.
35. An important discussion held and recorded before promulgation of the existing Act should be taken note:
2 (d) amendments to Sections 135, 139 and 140 of the aforesaid Act were also suggested by some Members of Parliament at the time of consideration and passing of the said Bill. It is therefore, proposed to omit the words "or is likely to" in Clause (a) of subsection (2) of Section 135 (in context of power of inspection of premises likely to be used for unauthorized use of electricity) ; to substitute Sections 139 and 140 of the Act so as to ((i) omit the words "negligently causes electricity to be wasted or diverted or" in Section 139) ; and (ti) omit the words "maliciously causes electricity to be wasted or diverted" in Section 140 which may cause undue harassment.
36. We have to remember non-supply of electricity, if caused due to theft, will have to be treated undue harassment to the innocent victims. We have to see the welfare of the State. Economical agenda should not be suppressed by the so-called political agenda. No census is required to count how many persons are honestly consuming electricity and how many persons are dishonestly consuming. Unfortunately law breakers are more powerful than law ablders even being lesser in numbers. Therefore, law has to be made useful to control the law breaking. Hence, even before the amendment actually taken effect appropriate protection is needed to maintain check and balance. Very often we refer the ratio of State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. . We found at least two out of seven grounds as mentioned therein are nearer to the issue herein. Such grounds are as follows:
(1)....
(2) Where the allegations made in the first Information report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) ....
(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) ....
(6) ....
(7) ....
37. We are aware that the laying down guidelines are neither sacrosanct in nature nor speaks about a situation where order of taking cognizance by the Court in respect of non-cognizable offence is likely to be passed. Moreover, situation varies from case to case. The Supreme Court Itself observed that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae. The Supreme Court cautioned by saying that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or Inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.
38. According to us, the police cannot prevent one from filing complaint or lodging F.I.R. Therefore, the police cannot sit over it indefinitely. The natural consequence of filing a complaint or lodging an F.I.R. is an enquiry. There is no bar to make any enquiry. Although in the common parlance enquiry and Investigation are synonymous but in the legal parlance there is a hair line difference between these two. The meaning of "enquiry" is to ask for Information to know something, whereas meaning of "investigation" is to find out truth. Therefore, the stage of enquiry comes before the stage of Investigation or enquiry can be construed as preliminary Investigation. The aforesaid two quoted grounds are related to investigation but not related to enquiry. Neither Section 155(2) nor Section 156(1) Cr. P.C. talk about enquiry. Therefore, enquiry may go on. Investigation may also go on, provided the case is cognizable in nature. But in case there is a possibility of starting investigation in a non-cognizable case, an order of Magistrate is required to be obtained. Section 151 of the Act is derogatory in nature without any foundation and adversely affecting the legal sanctity of the Act specially when Section 175 speaks that the Act is made in addition to and in derogation of any other law for the time being in force. However, as per the existing list of offences under the Act, the police is required to take appropriate steps after obtaining necessary permission from the Court of competent jurisdiction. Section 190 of the Cr. P.C. is speaking about cognizance of the offences to be taken by the Magistrate under three contingencies which are as follows:
(a) Upon receiving a complaint of facts which constitute such offence ;
(b) upon a police report of such facts ;
(c) upon information received from any person other than a Police Officer, or upon his own knowledge, that such offence has been committed.
39. Therefore, even if complaint of facts is not received, a Magistrate is empowered to act upon on the police report of such fact irrespective of third contingency which is not germane for due consideration in this context. Section 151 of the Act can at best put an embargo to the first contingency. Hence, either under Section 155(2) or under Section 190 of the Cr. P.C. one can take the matter to the Court of competent Jurisdiction for the purpose of obtaining an appropriate order of Investigation and arrest, if any. Once the order is obtained, there is no bar for the police to investigate the offence and arrest Irrespective of applicability of the Section cognizable or non-cognizable in nature.
40. However, in State of U.P. v. Awadh Kishore Gupta and Ors. 2004 SCC (Cri) 353, it was held that the High Court being highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the Issues Involved, whether tactual or legal, are the magnitude and cannot be seen in their true perspective without sufficient material. It has also held that when an information is lodged at the police station and an offence is registered then the mala fides of the Informant would be of secondary importance. It is the material collected during the investigation and evidence led in the Court which decide the fate of the accused. The allegation of mala fides against the informant are of no consequence and cannot be itself the basis of quashing the prosecution. Although the cited decision is under Section 482, Cr. P.C. but the same principle will be applied in the cases under Article 226 so far as this branch is concerned. Full Bench of our High Court in Ashok Kumar Dixit v. State of U.P. 1987 ACR 236 (FB) : 1987 (24) ACC 164, held that in these types of cases scope of Article 226 as regards Investigation is even narrower than Section 482, Cr. P.C.
41. Now the entire discussion is leading us towards three different directions:
(a) Whether writ petitions will be dismissed since theft of electricity is shown as non-cognizable offence under the Act, 2003 ;or
(b) whether writ petitions will be disposed of quashing the F.I.R., if any, or following the principle of State of Haryana v. Ch. Bhajan Lal (supra) ; or
(c) whether arrest of the petitioners will be stayed for a brief period with a direction upon the authority to obtain leave or permission from the appropriate Court to Investigate the crime and arrest.
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 Section 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 certain offences punishable in accordance with law. One of such offence is theft of electricity under Section 135 of the Act. Section 135 of the Act does not preclude applicability of Cr. P.C. absolutely. Rule 12 of the Rules is speaking directly on the Issue. But according to us, there is a direct conflict between such rule and Section 151 of the Act. Had it been the case that Section 151 is exercisable, we could have given thought in respect of the question/s raised by the petitioners, but now when the Bill has been presented proposing amendment of such Section by converting non-cognizable offence to cognizable offence, we should not Interfere with it. We can only keep the applicability of both Section 151 of the Act and Rule 12 of the Rules in abeyance till the amendment actually takes place. Naturally the question will arise how the law will take effect? It can take effect by applying the provision of Section 175 of the Act. Such section has made the entire Electricity Act, 2003 as a supplementary law in addition to and not in derogation to any other law for the time being in force. "Derogation" means the act of annulling or breaking a law, or some part of it as per Law Lexicon 1997 Edition. Therefore, when by such Section the Electricity Act, 2003 does not propose to break or annul the existing law, Cr. P.C. can act as a filler to meet the need or necessity. Now the question would be what is the need? The need is taking cognizance by the Court as regards non-cognizable offences and giving an appropriate direction to the police to do the needful. Section 155 of the Cr. P.C. is clear to that extent as given hereunder:
155. Information as to non-cognizable cases and investigation of such cases.-(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the Information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No Police Officer shall Investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.
44. However, from the aforesaid discussions the following inferences are drawn:
(a) Theft of electricity is social crime;
(b) electricity is saleable commodity per unit but not un-saleable abstract energy and supply of uninterrupted electricity to the citizens is essential service of the State, therefore, theft of electricity should be treated as cognizable offence;
(c) persons involved in theft of electricity do not necessarily mean the illegal user alone but persons adding or abating the theft either within or outside the department;
(d) objects and reasons, list of offences and Sections 135, 151 and if necessary other Sections of the Act, 2003 should be harmoniously construed ;
(e) Section 151 and the word "non-cognizable" under the list of offences under the Act can be deleted to have more effective applicability ;
(f) by virtue of Section 175 of the Act, 2003, the Act is supplemental to the general law, therefore, there is no bar to the applicability of Cr. P.C. ;
(g) "Electricity" being item No. 38 of the List Ill-concurrent list of the Seventh Schedule of the Constitution of India, both Central and State have every right to form Special Task Force to entrust the duty at an appropriate circumstance especially in case of doubt about failure or connivance of the police with miscreants.
45. With the above inferences following order is passed hereunder:
Both the existing Section 151 of the Electricity Act, 2003 and Rule 12 of the Electricity Rules. 2005 shall be kept in abeyance and can be made applicable when amendment of the Electricity Act, 2003 will actually take effect. The word "cognizance" under the Rule 12 of the Electricity Rules, 2005 will be read as "action". Since theft of electricity is declared as social crime and saleable commodity, there is no bar under Cr. P.C. to take care of the offences temporarily till its amendment by virtue of Section 175 of the Act. Necessary applications can be made by the appropriate authority and/or by the police to the court of competent jurisdiction to obtain leave and/or permission for necessary investigation of the individual cases. After obtaining such leave/permission there will be no bar for them to investigate and/or arrest an offender or offenders. The arrest of the petitioners is stayed for a period of one month or till after order of the court of competent jurisdiction to investigate the matter, whichever is earlier.
46. Thus, the writ petition stands disposed of.
47. No order is passed as to costs.
Shiv Shanker, J.
48. I agree.