Whether proceedings under Sec 154 of Electricity Act before the special court for fixing civil liability need payment of court fee as a civil case?

 Section 154 of Electricity Act which prescribes the procedure and power of special court does not say that the special court, while determining civil liability u/s 154(5) of the Act would adopt the procedure prescribed in the Code of Civil Procedure for trial of suits. It does not even say that the special court, while determining civil liability u/s 154(5) of the Act shall be deemed to be a civil court. Use of the words as if it were a decree of the civil court in Section 154(5) of Electricity Act is a strong indicator of the legislative intent and clearly shows that the determination of civil liability by special court by itself will not be a “decree” passed by the civil curt and it is only by fiction of law that such a liability would be recovered as if it were a decree of civil court. Had the intention of the legislature been that the special court while dealing with a request for determination of civil liability, should adopt the procedure prescribed for trial of a civil suit, it would have stated so either expressly or by necessary implication and it would not have merely said that the amount of civil liability shall be recovered as if it were a decree of civil court. The legislature would then have said that the special court while determining such a liability would act as a civil court or that the determination made by it shall be deemed to be the decree of a civil court. {Para 22}

24. Taking into consideration the proposition of law enunciated by the Hon'ble Supreme Court in the case of Paramjeet Singh Patheja (Supra), special courts cannot be deemed to be civil court, the same having been specially set up u/s 153 of the Special Courts Act primarily for the purpose of trial of offence punishable U/ss 135 to 140 and Section 150 of Electricity Act. These special courts are not regular courts envisaged under Article 136 of the Constitution irrespective of the fact that the person who can be appointed as a Judge of a Special Court needs to be an Additional District & Sessions Judge immediately before his appointment as a Judge of a Special Court. In any case, in the absence of any specific statutory provision to this effect, a court set up primarily for the purpose of trial of the criminal offences cannot be considered to be a civil court within the meaning of Article 1 of Schedule 1 of Court Fee Act.

31. For the reasons given in the preceding paragraphs. I am of the considered view that ad valorem court fee is not payable on the complaints filed by the petitioner before the Special Courts. The view taken by the learned Judge of the Special Court is not sustainable in law and is liable to be set aside. Hence, the impugned order is hereby quashed and the Special Court is directed to proceed further in the matters without insisting upon payment of ad valorem court fee.

 High Court of Delhi

Before V.K. Jain, J.

BSES Rajdhani Power Ltd. Vs State N.C.T. of Delhi & Anr.

Crl. M.C. 3284/2008 with Crl. M.C. 3454/2008, 

Decided on November 25, 2009

Citation: 2009 SCC OnLine Del 3817 : (2011) 121 DRJ 34 : AIR 2010 Del 91 : 2010 AIHC 2958 : (2010) 175 DLT 74 : (2010) 114 DRJ 193 : (2011) 1 CCR 113

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Whether accused can be prosecuted for theft of electricity U/S 379 IPC?

 When there is a specific/special law covering the question of theft of electricity i.e. Section 135 of the Act, the general law contained in Section 379, IPC will not be applicable. Any attempt by the notice to add offence under Section 379 IPC will be a crude devise by the prosecution to overcome the likely objection from the accused about the filing of the complaint instead of registration of FIR. Law is well-settled that special law will prevail over the general law. Once there is a specific provision is the Act in respect of providing of punishment for theft of electricity, no offence under Section 379, IPC could be alleged by the prosecution or later on added during the investigation so as to preempt the taking of plea by the accused that no prosecution for the offence under Section 135 of the Act could be launched except upon a complaint by the authorized officer.

7. That apart, the Electricity Act, 2003, which is a special statute, is a latter piece of legislation, than the Indian Penal Code, 1860, and therefore, it can be safely assumed that the legislature in its wisdom, after considering the general provision of offence of theft under the Indian Penal Code, decided to bring in the specific provision for offence of theft of electricity under the provision of Section 135 of the Electricity Act, 2003. Therefore, once a person is said to have committed an alleged offence of theft of electricity, no case under Section 379 of the Indian Penal Code, 1860 would lie in view of the specific provision of law contained in the Electricity Act, 2003 in this regard.

Calcutta High Court

Biswanath Patra vs Divisional Engineer (E) S And Lp ... on 4 May, 2007

Equivalent citations: AIR 2007 Cal 189, 2007 (2) CHN 657

Bench: B Somadder

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How to appreciate evidence in case of theft of electricity?

 From the aforesaid facts, it can be noticed that theft of electricity has been presumed solely on the basis of availability of cut in the incoming PVC of the house of the neighbour. The incoming PVC of the house of the neighbour happens to pass near to the Chhajja of the house of the plaintiff. No pilferage of the electricity was found at the spot either on 04.06.2017 or on 05.06.2017. In the LLI report dated 04.06.2017, blinking of the meter was found to be stopped, but in LLI report dated 05.06.2017, no such feature was noticed by the inspecting team. The blinking and non-blinking of the meter was directly proportional to the stoppage of supply by the consumer herself in her house. The said event can happen in case of no supply from the department and the supply is being generated through the mechanism of genset. In such eventuality, blinking of the meter would stop. This fact has been admitted by DW 1 Mandeep Sidhu, SDO Vigilance when he was cross-examined on 16.03.2018.

10. From the testimonies of DW 1 and DW 2, positive fact has come to fore that the witnesses have not verified that the running of electricity in the house of the plaintiff was only on account of electricity supply of department and not on account of operation of genset and inverter in the house of the plaintiff. Non-blinking of the meter cannot be attributed to commission of theft alone, rather the same can happen during the course of supply through genset/inverter when electricity supply is off.

11. Admittedly, the raiding team has not removed the meter for any lab checking. The checking report in the context of instruction No. 9 issued by the department cannot be held to be legal inasmuch as that defendant was legally required to make video-graphy of the events dated 04.06.2007 and 05.06.2017. As per instruction No. 9, pertaining to procedure for inspection of premises, detection of theft of electricity and framing a case for theft of electricity, video-graphy/recording of all the events in a digital camera is required as an essential feature for ready reference of such event. The aforesaid instruction No. 9 has been issued by the department for dealing with the cases of theft of electricity and the instruction prescribes that the investigating officer/officials shall take along with them the digital camera/video or any other recording devise preferably having the facility of date and time stamp for recording the complete events during the course of checking of the premises. While inspecting and checking the premises, the raiding party should record whole event after reaching the premises upto leaving the premises through video-graphy in the camera/digital camera. The authorized inspecting officer shall keep one CD with him and hand over one CD to assessing officer.

12. Admittedly, the aforesaid exercise has not been done. In a case of similar violation, the High Court in CWP No. 9582 of 2013 titled D.H.B.V.N.L. v. Permanent Lok Adalat and another decided on 01.04.2014 has observed that noncompliance of aforesaid instruction(s) would entail in disbelieving the stand of the department.

13. In view of admitted facts on record, it is found that the defendant has drawn conjecture against the plaintiff solely on the ground of availability of cut tapped with cello tape in the incoming PVC of the house of the neighbour that happens to pass near to the chhajja of the house of the plaintiff. No other evidence has been collected to show any pilferage at the instance of the plaintiff through the cut in the incoming PVC of the house of the neighbour. No complaint was ever made by the neighbour. No action has been taken against the consumer of incoming PVC where the cut was detected by the investigating team. The case of theft has to be decided on the basis of proving guilt of the accused/consumer to the hilt beyond all reasonable doubt.

IN THE HIGH COURT OF PUNJAB AND HARYANA

CR No. 3390 of 2018 (O&M)

Decided On: 17.10.2019

Santosh  Vs.  SDO City Sub Division, Ubhvnl

Hon'ble Judges/Coram:

Raj Mohan Singh, J.

Citation: AIR 2020(NOC) 139 P&H

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