C.E.S.C. Ltd. and Another vs State of West Bengal and Another

Partha Sakha Datta, J.—The prosecution was launched against the O.P. No. 2 u/s 39(B) of the Indian Electricity Act, 1910 as amended in 2001. Pursuant to the registration of the FIR charge-sheet has been submitted. During the pendency of this criminal case, the Electricity Act, 2003 came into force.

The Assessing Officer in terms of section 126 of the Electricity Act, 2003 assessed the amount of the bill of enjoyment of dishonest, abstraction and consumption of electrical energy and passed an order directing the O.P. No. 2 to make payment a certain amount of money. That order of the Assessing Officer was modified by the appellate authority on 19th January, 2005 asking the O.P. No. 2 to make payment of Rs. 76,188/- on account of unmetered consumption charge. It is submitted and not in dispute that the amount levied by the appellate authority has been made payment of.

The learned Judge, Special Court under the Indian Electricity Act Howrah passed a very cryptic order on 30th May, 2008 to the effect that as the entire amount as per the order of the appellate authority was made payment of the accused would get exoneration of the charge in terms of section 126(4) of the Indian Electricity Act. 2003 and accordingly, the O.P. No. 2 was released from bail-bond. It is this order of the learned Judge in the Court below which is the subject matter of challenge in this revisional application

Mr. Bagchi submits that the learned Judge in the Court below was without any jurisdiction to exonerate the O.P. No. 2 of the charge which was leveled against him and even sub-section (4) of section 126 of the Act, 2003 has no manner of application in the instant case. It is further submitted that, under the old Act namely Indian Electricity Act, 1910 as amended in 2001''-there is an even namely section 39(E) dealing with compounding of offence. The said section 39(E) for better appreciation of the case at hand is reproduced here in below:

Compounding of offence.-(1) Notwithstanding anything contents elsewhere in the Code of Criminal Procedure, 1973 (2 of 1974), and with prejudice to the generality of the provisions of sub-section (7) of section 39C any officer authorised by the Electricity Utility may, upon an application from any consumer or any person who has committed an offence punishable under this Act, compound the commission of such offence on payment of a fine by such consumer or person as mentioned in section 39(2) over and above the charges for assessed unmetered consumption as stipulated in the General Conditions of Supply of the Utility.

(2) On payment of such fine for the purpose of compounding of an offence under sub-section (1) any consumer or any person shall be discharged forthwith, if in custody, and no other proceedings shall be instituted or continued against such consumer or person, for the offence so compounded.

(3) The compounding of an offence under sub-section(l) shall be allowed only in respect of the first offence committed by any consumer or any person and no such compounding shall be made for any subsequent offence committed by same consumer or person.

Now a bare reading of the aforesaid provisions makes it clear that the power of compounding the offence rest with any officer authorised by the electricity utility. Unquestionably neither the Appellate Authority nor the Special Judge under the Act, 2003 had any jurisdiction to compound the offence u/s 39E of the Indian Electricity Act, 1910 as amended by the West Bengal in 2001.

Again sub-section (4) of section 126 of the Electricity Act, 2003 has no manner of application in the instant case. Section 126 is covered under Part XII of the Electricity Act, 2003. It deals with assessment modalities thereof. Sub-section (4) of section 126 reads as follows:

Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him.

It is not understood how the provision of sub-section (4) of section 126 of the Electricity Act, 2003 could have any manner of application in the matter of compounding the offence. Offence was allegedly committed and the O.P- No. 2 was made to make payment of the amount on account of unmetered electricity charge. Before the learned Judge the petitioner who is the West Bengal State Electricity Board did not make any application praying for dropping of the prosecution on the ground of payment of charges on account of unauthorised and illegal consumption and abstraction of electrical energy. The learned Judge suo moto exonerated of the O.P. No. 2 of the case simply on the ground of payment of the amount as per order of the appellate authority. The appellate authority by the order dated 13.1.05 did not make any observation that consequent upon payment of charges on account of abstraction of electrical energy the O.P, No. 2 would be exonerated of the criminal prosecution. Indeed, it was outside the jurisdiction of the appellate authority to make any such observation which indeed was not there in the order of the appellate authority. The power of compounding offence did not vest with the learned Judge in the Court below u/s 39E of the Indian Electricity Act, 1910.

Mr. Addya learned counsel for the O.P. N.2 submitted that before the learned Judge in the Court below the CESC did not raise any objection to the discharge of the O.P. No. 2. Non-raising any objection before the learned Judge does not alter the legal position.

Mr. Kasem Ali Ahmed learned counsel for the State adopts the argument of the learned counsel for the petitioner.

In the circumstances, the order of the learned Judge dated 30th May, 2008 does not appear to be legally sustainable.

Accordingly, I allow this application. I set aside the order dated 30th May, 2008 passed by the learned Special Court under Indian Electricity Act, Howrah. The learned Judge will proceed with the case in accordance with law.

A copy of the order shall be sent to the learned Judge, Special Court, Howrah for information and necessary action.

Urgent xerox certified copy of the order shall be given to the parties, if applied for, as expeditiously as possible.