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Judgment
By this writ application under Article 226 of the
Constitution of India, the writ applicant, a consumer of the PGVCL, has prayed for the following reliefs;
"(A) This Hon''ble Court may be pleased to admit and allow this application.
(B) This Hon''ble Court may be pleased to issue appropriate writ, order or direction, to quash and to set aside the FIR bearing II C.R. No.400 of 2015 dated 14.01.2015, registered with G.U.V.N.L. Police Station, Rajkot against the present applicant, in the interest of justice.
(C ) That, pending admission, hearing and till final disposal of the present application, this Hon''ble Court be pleased to grant stay as to further investigation/proceedings in connection with the FIR bearing II-C.R. No.400 of 2015 dated 14.01.2015, registered with G.U.V.N.L. Police Station, Rajkot against the present applicant, in the interest of justice;
(D) This Hon''ble Court may be pleased to grant such other and further relief/s as deemed just and proper by this Hon''ble Court in the interest of justice."
It appears from the materials on record that the writ applicant herein is a consumer of the PGVCL and has been allotted the Consumer No.31504/13679/3. On 28th August, 2014, in the course of the reading of the electric meter installed at the residential premises of the writ applicant, it came to the notice of the officer concerned that there was some tampering with the meter. The meter was removed and was sent to the laboratory for the purpose of test. The Laboratory Report No.RCD-2/LAB/1721 dated 24th September, 2014 indicated some tampering with the
meter.
In such circumstances referred to above, the Company issued a supplementary bill of the amount of Rs.93,965/- According to the company, the supplementary bill, raised, was towards the theft of energy. The company, before lodging of the first information report for the offence punishable under section 135 of the Electricity Act, 2003, issued a notice dated 23rd December, 2014 to the writ applicant herein with a view to give him an opportunity to make good the payment if he wanted to avoid the prosecution for the offence under section 135 of the Act, 2003. The notice dated 23rd December, 2014 is on record at page-19, Annexure-B to this writ application. The plain reading of the notice would indicate that the writ applicant was informed that since it was the first case of theft of energy, the company would like to give an opportunity to pay up the entire amount with an additional amount of Rs.4,000/- for the compounding of the offence.
It appears that the writ applicant herein, immediately on receipt of the notice, deposited an amount of Rs.93,965.82 towards the supplementary bill as well as an additional amount of Rs.4,000/- for the purpose of compounding of the offence. Despite the fact that pursuant to the notice issued by the company, the amount was paid and accepted, yet the company thought fit to lodge the first information report with the concerned police station on 14th January, 2015 for the offence punishable under section 135 of the Electricity Act, 2003.
In such circumstances, the writ applicant has come up before this Court, invoking the extraordinary jurisdiction under Article 226 of the Constitution of India for the quashing of the first information report.
On 2nd February, 2015, the following order was passed;
"Heard learned advocate Shri Dipen Desai for the petitioner and learned APP Ms. Maithili Mehta for respondent No.1.
Learned advocate Shri Dipen Desai for the petitioner submitted that the FIR under Section 135 of the Electricity Act, 2003 is registered against the petitioner. Thereafter, the respondent No.2 complainant issued notice on 23.12.2014 in which it has been stated that the first offence is registered against the petitioner and therefore if the petitioner would pay the amount of the bill, he will be exempted from further criminal proceedings. Petitioner can compound the offence which is registered against him. In pursuant to the said notice, petitioner paid the entire amount of the disputed bill with penalty on 26.12.2014. Copy of the said notice and the receipts of the payment are produced on record. Learned advocate for the petitioner referred the provisions of Section 152 of the Electricity Act, 2003 and the decision of Punjab & Haryana High Court in the case of Baljinder Singh v. State of Punjab & Anr . given in Criminal Misc. No. M.10991 of 2012.
In view of the aforesaid submissions, issue Notice returnable on 3rd March 2015. Learned APP Ms. Maithili Mehta waives service of notice on behalf of respondent No.1 State of Gujarat. Direct service is permitted qua respondent No.2. In the meantime, there shall be ad- interim relief in terms of para 7(C) "
Thereafter, on 7th March, 2017, the following order was passed;
"Let Rule be issued to the respondents, returnable on
21st April 2017. Ms. Pathak, the learned Additional Public Prosecutor waives service of notice of rule for and on behalf of the respondent No.1 State of Gujarat. Mr. Dave, the learned counsel waives service of notice of rule for and on behalf of the respondent No.2.
The interim order to continue. "
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the first information report should be quashed.
I am really taken by surprise with the contention put forward by Mr. Dave, the learned counsel appearing for the company that the compounding of the offence was a mistake on the part of the company, and such a mistake can always be rectified at any point of time. At this stage, Mr. Dave tried to clarify that the issue of notice referred to by this Court above, was not for the purpose of compounding of the offence. According to Mr. Dave, the policy of the company does not permit any officer to compound the offence. I find it extremely difficult to accept such contention of Mr. Dave, the learned counsel appearing for the company, more particularly, keeping in mind the notice issued upon the writ applicant dated 23rd December, 2014. In the notice, in no uncertain terms, it has been stated that if the writ applicant wanted to avoid the prosecution, then he should deposit the amount raised in the supplementary bill with an additional amount of Rs.4,000/- towards the compounding. The notice appears to be in the proforma of the company itself. I don''t understand why, at the last minute, the company decided to register the first information report. But for the notice issued and served upon the writ applicant, probably, he might not have deposited the amount. He might have contested the matter further.
Besides the above, the effect of such act of compounding is deemed acquittal within the meaning of section 300 of the Cr.P.C, 1973. Section 152 of the Electricity Act, 2003 reads as under;
" Section 152 . (Compounding of offences): --- (1) Notwithstanding anything contained in the Code of Criminal Procedure 1973, the Appropriate Government or any officer authorized by it in this behalf may accept from any consumer or person who committed or who is reasonably suspected of having committed an offence of theft of electricity punishable under this Act, a sum of money by way of compounding of the offence as specified in the Table below:
TABLE
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Nature of Service
Rate at which the sum of money for Compounding to be collected per Kilowatt(KW)/Horse Power(HP) or part thereof for Low Tension (LT) supply and per Kilo Volt Ampere(KVA) of contracted demand for High Tension (HT)
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Industrial Service twenty thousand rupees;
Commercial Service ten thousand rupees;
Agricultural Service two thousand rupees;
Other Services four thousand rupees:
Provided that the Appropriate Government may, by notification in the Official Gazette, amend the rates specified in the Table above.
(2) On payment of the sum of money in accordance with sub-section (1), any person in custody in connection with that offence shall be set at liberty and no proceedings shall be instituted or continued against such consumer or person in any criminal court.
(3) The acceptance of the sum of money for compounding an offence in accordance with sub-section (1) by the Appropriate Government or an officer empowered in this behalf empowered in this behalf shall be deemed to amount to an acquittal within the meaning of section 300 of the Code of Criminal Procedure, 1973.
(4)The Compounding of an offence under sub-section (1) shall be allowed only once for any person or consumer."
I am really surprised by the stance of the company, which appears to be lacking in bonafide. At the last minute, they could not have changed their decision of not going for compounding.
In the course of the hearing of this matter, there was some discussion as regards the stage of compounding. To put it in other words, whether before the registration of the first information report, the company could have compounded the offence or not. The answer to this is in clause (2) of section 152 referred to above. Clause (2) makes it abundantly clear that on payment of the sum of money in accordance with sub-section (1), no proceedings shall be instituted, or if instituted, then continued.
In the result, this application succeeds and is hereby allowed. The first information report being II-C.R. No.400 of 2015 registered with the G.U.V.N.L. Police Station, Rajkot is hereby quashed. Rule is made absolute to the aforesaid extent.
Direct service is permitted.