We have perused the impugned First Information Report as well as the material on record.
It has been contended by the learned counsel for the petitioner that respondent No.3, who is Assistant Engineer, Noida Power Company Limited, is not the competent authority to lodge the First Information Report against the petitioner, as the respondent-Power Corporation is licensee and his licence was granted under Section 14 of the Electricity Act, 2003 and respondent Nos. 3 and 4 come under the ambit of Electricity Act, 2003 and U.P. Electricity Supply Code, 2005, hence, State under Article 12 of the Constitution of India. An averment to this contention has been stated in para 15 of the petition.
It is further contended that the First Information Report has been lodged with malafide intention by the respondent No.3 when the order dated 03-11-2011 passed by this Hon'ble Court in Civil Misc. Writ Petition No. 62845 of 2011, which was filed by the wife of the petitioner Smt. Pushpa Rani, co-owner of the industry in question was served on respondent No.4 on 09-11-2011, as this Court has issued notice to the respondent in the said Writ Petition, and when the respondent No. 4 came to know about the order dated 03-11-2011 passed in the said Writ Petition, the impugned First Information Report was lodged against the petitioner on 10-11-2011 under Section 135 of the Electricity Act, 2003 on a false allegation regarding theft of the electricity.
It is further contended that the petitioner has paid Rs.14,97,176/- till date towards Bill-cum-Notice, issued by Noida Power Company Limited from October, 2010 till 30th June, 2011.
It is further contended that the procedure laid down in Uttar Pradesh Electricity Supply Code, 2005 regarding inspection of the premises, where the Electricity Meter has been installed, is also not followed by the Inspecting Party.
Learned Additional Government Advocate, on the other hand, submitted that the respondent No.3 is the competent authority to lodge the impugned First Information Report against the petitioner, as has been laid down under Section 135 (2) of the Electricity Act, 2003.
Section 135(2) of the Electricity Act, 2003 reads as follows :-
"135 (2) [Any officer of the licensee or supplier as the case may be, authorised ] 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 unauthorised 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."
It is further contended that further dues to the tune of Rs.16,21,891/- are outstanding against the petitioner till 14-02-2011 and thereafter the petitioner's industry was found indulging in theft of the electricity at time of inspection and further, the impugned First Information Report discloses a prima-facie against the petitioner. Moreover, it has been pointed to the Court that this Court did not stay the recovery of dues in the Civil Writ Petition filed by the wife of the petitioner and only notice has been issued to the respondent.
Having considered the submissions made by the learned counsel for the parties, we are of the opinion that in view of Section 135(2) of the Electricity Act, 2003, the licensee has power to lodge F.I.R. against the petitioner and there appears no malafide intention on the part of the respondent to lodge F.I.R. against the petitioner.
The Full Bench of this court in Ajit Singh @ Muraha v. State of U.P. and others (2006 (56) ACC 433) reiterated the view taken by the earlier Full Bench in Satya Pal v. State of U.P. and others (2000 Cr.L.J. 569) after considering the various decisions of the Apex Court including State of Haryana v. Bhajan Lal and others (AIR 1992 SC 604) that there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the Police to investigate a case.
From the perusal of the FIR, prima facie it cannot be said that no cognizable offence is made out. Hence no ground exists for quashing of the FIR or staying the arrest of the petitioner.
The writ petition is, accordingly dismissed.