Shashi Chaudhary vs State of Haryana

K.K. Srivastava, J.

The petitioner seeks the quashing of impugned FIR No. 805 dated 19.11.1997, copy annexure P1, Police Station Civil Line, Rohtak and the subsequent proceedings based thereon.

A perusal of the impugned FIR shows that the premises of Smt. (Dr.) Shashi Chaudhary w/o Dr. R.K. Chaudhary A/c No. N2562 resident of HUDA Complex (Chaudhary Maternity Hospital) was checked by Sh. A.K. Hooda, S.S.E. along with SDO, Sh. S.K. Mathur `OP'' No. 2, Rohtak/AEE, M.S. Sub Division, Rohtak on 19.11.1997 and found as under :

"Meter Glass tampered, Meter may be stopped by inserting the Xray film. This is a case of theft of electric energy."

Consequently, the report was sent from Sub Divisional Officer, `OP''. Sub Division No. 2, Haryana State Electricity Board (for short `HSEB''), Rohtak to SHO Civil Lines, Rohtak. The quashing of this FIR is sought on the ground that the contents of the FIR do not prima facie make out the alleged offence. It is not the case of the prosecution that either the glass of the meter was found broken or removed therefrom. The seal of the meter was found intact and it was not found that the theft of the electric energy was being committed by the petitioner. Apart from it, the HSEB, Rohtak imposed penalty which was paid at the spot. It was mentioned that under its own policy the HSEB, Rohtak, FIR in cases where the penalty imposed was recovered, would not be proceeded with as it would be a case of double punishment.

Notice was issued to the respondentState who filed a reply of Inspector Ram Kumar, Station House Officer, Police Station, Civil Lines, Rohtak contending, inter alia, that after the completion of the investigation challan has been submitted in the trial Court on 4.12.1997. On merits it was contended that the petitioner was found involved in the theft of electric energy and during investigation allegations made in the FIR were fully supported. Additionally it was contended that the criminal liability is in addition to the imposition of the penalty and the claim of the penalty being paid has no effect on the maintainability of the criminal case filed by lodging the FIR, Reference in this connection was made to Section 48 of the Indian Electricity Act which deals with the penalties not affecting other liabilities.

After hearing learned counsel for the petitioner and learned State counsel and going through the averments made in this petition as well as the impugned FIR, I am of the considered opinion that this petition has considerable merit and deserves to be allowed. The reasons are as under :

A perusal of the impugned FIR will go to show that the meter glass was found tampered and a possibility was expressed that meter may be stopped by inserting the Xray film. It is not the case of the prosecution that the glass of the meter was found broken and any tampering has been attempted by either inserting the Xray film or any other device. It is not the case of the prosecution that the meter was found stopped and not working at the time of the inspection. The expression of mere apprehension of the tampering of the meter by inserting Xray film cannot be said to form a legal basis for the commission of the offence under Section 39 of the Indian Electricity Act, 1910 read with Section 379 IPC. Apart from it, the penalty was imposed and the meter was replaced and nothing abnormal was found in the meter that was installed subsequently. Once the penalty was imposed which was to the tune of Rs. 13,091/ and which was deposited by the petitioner and accepted by the Haryana State Electricity Board vide Receipt No. 78, Book No. 879 dated 20.11.1997 vide averment made in para 4 of the affidavit of the petitioner, the respondentState could not proceed with the prosecution of the petitioner as the same would amount to double punishment. In this context learned counsel for the petitioner placed reliance on the case of Ram Dhari v. State of Haryana, 1997(2) RCR 275, wherein a learned Single Judge of this Court held in para 4, inter alia, as under :

" but here is a case where the complainant has framed the policy to accept onetime compensation for the theft of electric energy and to withdraw the case, and accordingly, has received the compensation from the petitioner under annexure P2. In such circumstances, the complaint will not support the case of the prosecution and it will be a mere futile exercise to continue the FIR and the consequential proceedings insofar as they relate to the petitioner. In view of these compelling circumstances, I deem this to be a proper case where the FIR in question and the consequential proceedings insofar as they relate to the petitioner, should be quashed, as no useful purpose will be served."

The policy referred by the learned Single Judge in para 2 of the judgment which reads as under :

"According to the petitioner, Haryana State Electricity Board has framed a policy under Annexure P3 whereunder the Board had decided to receive onetime compensation and withdraw the case on payment of said compensation by those persons who committed theft of electric energy. The relevant portion of the policy reads as under :

"The matter has further been reviewed and it has been decided by the Board that onetime compensation from the consumers of different categories may be charged as per the rates mentioned below, where the theft of energy is detected and the offender comes forward voluntarily to settle and make payment of the amount of compensation.

Sr. No. Category Compensation Charges

Domestic Supply. Rs. 5000/ per KW of sanctioned load

Nondomestic supply. Rs. 1,000/ per KW of sanctioned load

Agricultural supply. Rs. 750/ per BHP of sanctioned load

L.T. Industrial supply. Rs. 1,000/ per BHP of sanctioned load

H.T. Industrial supply. Rs. 1,500/ per KVA of sanctioned contract demand.

The above charges will be as onetime compensation payable by the consumer to the HSEB where theft is detected and will not be recoverable to using malpractice.

"This FIR will be withdrawn and connection restored only after the deposit of the compensation stated above."

"It has also been decided by the Board that the above criteria may also be applicable to the previous cases which are pending and for which FIRs have been lodged on account of detection of theft, pilferage of energy. The concerned SDOs (OP) may convey the above decision of the Board to such consumers and if the defaulting consumer wished to come forward for a final settlement of the matter, they can do so."

Moreover, reference has been made to the policy of the HSEB that once penalty was imposed and realised there was no justification to proceed with the FIR. This policy of the HSEB is not disputed by the learned AAG for the State of Haryana, who, on the other hand, contended that this was under the old policy which has been replaced by a new policy. However, the new policy, if any, has not placed on record along with the replyaffidavit. It is relevant to note that the deponentpetitioner averred in para 4 of the affidavit, inter alia, that a new meter of the same load was installed and after installation of the new meter as well the ratio of subsequent bills remained on the lower side than that of the earlier bills issued on the basis of old replaced one.

In these facts and circumstances, the continuance of the impugned FIR and proceedings flowing therefrom will be a sheer abuse of the process of the court and the same would be to subject the petitioner to unnecessary harassment as the petitioner has already been imposed a penalty which she has deposited. Petition is, accordingly, allowed. The impugned FIR No. 805 dated 19.11.1997, Police Station Civil Lines, Rohtak and subsequent proceedings flowing therefrom are hereby quashed qua the petitioner.