1. In all these cases, a common question of fact and law are involved and this is why, all these cases have been heard together with consent of the learned counsels appearing for the parties.

2. Heard Mr. M.S. Mittal, the learned Senior counsel appearing on behalf of the petitioners in Cr.M.P. No.627 of 2005, Cr.M.P. No.586 of 2006 and Cr.M.P. No.1902 of 2011], Mr. Ajit Kumar, the learned Senior counsel appearing on behalf of the petitioner in Cr.M.P. No. 140 of 2009, Mr. Sumeet Gadodia, the learned counsel appearing on behalf of the petitioner in Cr.M.P. No. 8 of 2012, Mr. Dhananjay Kumar Pathak, the learned counsel appearing on behalf of the petitioners in Cr.M.P. No. 644 of 2008, Cr.M.P. No. 769 of 2008, Cr.M.P. No. 140 of 2009 and Cr.M.P. No. 1902 of 2011, Mr. Nitin Kumar Pasari, the learned counsel appearing on behalf of the petitioners in Cr.M.P. No.195 of 2008 and Mr. Sidharth Roy, the learned counsel appearing on behalf of the petitioner in Cr.M.P. No. 2088 of 2017 as well as Mr. Nilesh Kumar, the learned counsel appearing on behalf of the respondent J.U.V.N.L. and Mrs. Priya Shrestha, Spl.P.P., Mrs. Nehala Sharmin, Spl.P.P., Mr. Fahad Allam, A.P.P.,

Mr.B.N.Ojha, A.P.P., Ms. Sushma Aind, A.P.P. and Mrs.Ruby Pandey, A.P.P. appearing on behalf of the respondent-State in respective cases.

3. In Cr.M.P.No. 2088 of 2017, the prayer has been made for quashing of the order taking cognizance dated 24.08.2016 as well as entire criminal proceedings in connection with Giddi P.S.Case No.17/07 (G.R.No. 477 of 07) registered under sections 379/427 of the I.P.C pending in the court of learned Additional District and Sessions Judge No.II cum Special Judge Electricity Act, Hazaribagh.

In Cr.M.P.No. 627 of 2005, the prayer has been made for quashing of the First Information Report in connection with Saraikella, Adityapur P.S.Case No.156 of 2005 dated 11.6.2005, G.R. Case No.495 of 2005 under section 39/44 of Indian Electricity Act, 1910 and section 379 of I.P.C pending in the court of learned Judicial Magistrate, at Sarakiella. Subsequently, I.A. No.635 of 2023 has been filed challenging the order taking cognizance dated 06.4.2018.

In Cr.M.P.No. 586 of 2006, the prayer has been made for quashing of the First Information Report in connection with Chandil P.S. Case No.54 of 2006 dated 23.4.2006, corresponding to G.R. Case No.289 of 2006 under section 135 and 138 of the Electricity Act, 2003, pending in the court of learned Chief Judicial Magistrate, Saraikella Kharsawan.

In Cr.M.P.No. 34 of 2007, the prayer has been made for quashing of the First Information Report in connection with Gamaharia P.S.Case No.1 of 2007 dated 3.1.2007, G.R. Case No.11 of 2007 under section 135 of the Electricity Act, 2003 and section 379 of the I.P.C., pending in the court of learned Chief Judicial Magistrate, Saraikella Kharsawan.

In Cr.M.P.No. 1767 of 2007, the prayer has been made for quashing of the First Information Report along with entire criminal proceeding initiated against the petitioner in connection with Ramgarh P.S. Case No.551 of 2007, G.R. No.4367 of 2007 under section 379 of the I.P.C. and section 135 of the Indian Electricity Act pending in the court of learned Chief Judicial Magistrate at Hazaribagh.

In Cr.M.P.No. 195 of 2008, the prayer has been made for quashing of the First Information Report in connection with Ranchi Sadar, Namkum, P.S. Case No.24 of 2008, G.R. No.329 of 2008 under sections 135/126 of the Indian Electricity Act, 2003, pending in the court of leraned Chief Judicial Magistrate, Ranchi.

In Cr.M.P.No. 247 of 2008, the prayer has been made for quashing of the First Information Report including its seizure list and the entire criminal proceeding initiated in connection with Muffasil (Giridih) P.S. Case No.46 of 2008, G.R. No.273 of 2008, under section 379 of the I.P.C. and sections 39/44 of the Indian Electricity Act, pending in the court of learned Chief Judicial Magistrate, Giridih.

In Cr.M.P.No. 455 of 2008, the prayer has been made for quashing of the entire criminal proceeding including the First information Report being Kotwali (Hindpiri) P.S.Case No.0188 of 2008, G.R. No.1091 of 2008 dated 18.3.2008, registered under sections 135/ 138 of the Indian Electricity Act, pending in the court of learned Chief Judicial Magistrate, Ranchi.

In Cr.M.P.No. 557 of 2008, the prayer has been made for quashing of the First Information Report in connection with Deoghar (Town) P.S.Case No.83 of 2008, G.R. No.280 of 2008 under section 379 of the I.P.C and section 135 of the Indian Electricity Act, 2003, pending in the court of learned Chief Judicial Magistrate, Deoghar.

In Cr.M.P.No. 644 of 2008, the prayer has been made for quashing of the First Information Report including its seizure list and the entire criminal proceeding initiated in connection with Ramgarh P.S. Case No.156 of 2008, G.R. No.1415 of 2008 under section 379 of the I.P.C. and under section 135 of the Indian Electricity Act, 2003, pending in the court of learned Chief Judicial Magistrate, Hazaribagh.

In Cr.M.P.No. 769 of 2008, the prayer has been made for quashing of the First Information Report in connection with Chatra Sadar P.S.Case No.53 of 2008, G.R. No.212 of 2008 under section 135 of the Indian Electricity Act, 2003 as also under sections 39 and 44 of the Indian Electricity Act, 2003 and section 379 of the I.P.C, pending in the court of learned Chief Judicial Magistrate, Chatra.

In Cr.M.P.No. 850 of 2008, the prayer has been made for quashing of the First Information Report including its seizure list and the entire criminal proceeding initiated in connection with Chandil P.S. Case No.99 of 2008, G.R. No.377 of 2008 under section 379, 411 and 420 of the I.P.C and section 135 of the Indian Electricity Act, pending in the court of learned Chief Judicial Magistrate, at Seraikella.

In Cr.M.P.No. 860 of 2008, the prayer has been made for quashing of the First Information Report including its seizure list and the entire criminal proceeding initiated against the petitioner in connection with Ratu P.S.Case No.104 of 2008, G.R. No.2054 of 2008, under sections 135 /138 of the Indian Electricity Act, pending in the court of learned Chief Judicial Magistrate, at Ranchi.

In Cr.M.P.No. 140 of 2009, the prayer has been made for quashing of the First Information Report in connection with Muffassil Hazaribagh (Sadar) P.S. Case No.63 of 2009, G.R.No.216 of 2009 under sections 126, 135 and 138 of the Indian Electricity Act, 2003 as also under section 379, 420, 472, 474 of the I.P.C., pending in the court of learned Chief Judicial Magistrate, Hazaribagh.

In Cr.M.P.No. 1902 of 2011, the prayer has been made for quashing of the entire criminal proceeding including the F.I.R and the seizure list in connection with Mandu P.S. Case No.109 of 2010, G.R. No.1195 of 2010, under sections 379/ 409 of the I.P.C. and sections 135, 138, 39/ 40 of the Indian Electricity Act, 2003, pending in the court of learned Chief Judicial Magistrate, Hazaribagh.

In Cr.M.P.No. 08 of 2012, the prayer has been made for quashing of the entire criminal proceeding in connection with Giddi P.S.Case No.68 of 2011, G.R. No.2873 of 2011, registered under sections 420 of the I.P.C. and sections 135, 138 and 139 of the Indian Electricity Act, 2003, pending in the court of learned Judicial Magistrate, Hazaribagh.

In Cr.M.P.No. 1799 of 2012, the prayer has been made for quashing of the entire criminal proceeding in connection with Chakulia P.S. Case No.60 of 2012, G.R. No.389 of 2012, under sections 135 and 152 of the Indian Electricity Act, 2003, pending in the court of learned Special Judge cum Additional Sessions Judge-I, Jamshedpur.

4. In following cases, the prosecution story is given as below:

Cr.M.P. No. 2088 of 2017 (Navdeep singh )

That on 8.2.2007 at around 11 am a raid was conducted in the factory of Maa Chinnamastika Sponge Iron Ltd., situated at Binjhar. During raid it was found that in the said premise maximum seals of the electricity meter have been tampered and the metering unit has also been tampered because of which proper electric consumption has not been reported. It has also been alleged that the main road in front of the premise has check meters whose seal has been tampered and broken by the petitioner for their own benefit so that actual consumption of electricity may not be notted. Both the meters have been seized and approximately, 151.77 lakhs Rs. Worth of electricity theft has been committed by the petitioner. Accordingly, the present FIR has been lodged.

Cr.M.P. No. 627/2005 (Deepak Kumar Agarwal)

That on 10.6.2005 at around 5:30 pm M/S Hawells Industry was raided wherein it was found that terminal plastic seal, terminal paper seal, meters body seal, paper seal of meter were found broken. It has been further alleged that during course of meter reading the two phase current was found to be the less than usual which shows and confirms electricity theft. It has been alleged that approximately 28 lakh 78 thousand Rs. Worth electricity theft has been committed by the petitioner. That Mr. Deepak Agarwal is the authorized signatory of M/S Hawells Industry Accordingly case of electricity theft was registered against him.

Cr.M.P No 586 of 2006 (Shri Shivjee Singh)

That on 23.4.2006 at around 1:45 am Lord Balajee Manufacturing Steel Pvt. Ltd. was situated at Humid was raided wherein on reaching the premise it was found that someone was standing over the meter reading and on shouting the person fled away. On reaching the meter reading it was found that a wire was hanging from the secondary terminal of metering unit. Wire of the Seal of the gate of meter room was found broken, seal of meter box was also found broken, on climbing on DP on inspecting the metering unit it was found that secondary terminal of both seal beat wires was broken. That the mirror in the secondary terminal was found to be change and forged signature of Electricity Officer Engineer, Sarikella and Electricity Officer Engineer, Chaibasa was found in paper seal. Two wires connected from inside of CT terminal was also found to be hanging from outside. It is evident that seal of room of secondary terminal was broken and mirror was removed for CT shot and two wires of CT main was connected and wire was taken out. In such manner two wires were joint to tamper the system for inaccurate reading of CT shot meter to insure electricity theft. It is alleged that 63 lakh seven thousand five hundred Rs. worth electricity theft has been committed by the petitioner. Accordingly, the present FIR has been lodged.

M.P No. 34 of 2007 (Pawan Kumar Poddar)

That on 3.1.2007 at about 12:30 hours M/S Stan Commodities was raided wherein it was found that the seal in the meter room was not the seal provided by the board neither the seal in the meter box was provided by the board. Ultra Sonic Welding of the meter body was broken and so is the company paper seal of the meter body. Seal of Inner and Outer cover of motor terminal is also not provided by the board. MRI was conducted where discrepancies were found. Accordingly, it was found that seal of the meter was tampered with to induce the electricity theft by the owners of the company. That approximately 2 Crore 40 lakh Rs. Worth electricity theft has been committed. Accordingly, the present FIR has been lodged.

Cr.M.P. No. 195 of 2008 (Uttam Lodha)

That on 23.01.2008 at about 12:30 hours M/S Radiance Food and Beverage Company was raided and found that holographic paper seal and polymorphic seal of CT box of empty CT meter placed in this premise were removed. M-Seal of cabal holder was also removed. It was further found that instead of 60HP, 87HP of marking was used by the petitioner by tampering with the meter board. It has further been alleged that 2 lakh 23 thousand Rs. Worth of electricity theft has been committed by the petitioner. Accordingly, the present FIR has been lodged.

Cr.M.P. No. 557 of 2008 (Naresh Chandra Gupta)

That on 10.4.2008 at about 11:50 am M/S Deoghar Food Products Ltd. was raided and found that seal of electricity board has been tampered with for inducing electricity theft and it was allalised that approximately 88 lakh Nine thousand Rs. Worth of electricity theft has been committed by the petitioner. It has further been stated that Shree Radhe Ram Bagadria and this petitioner has signed an agreement with JUVNL for electricity consumption on behalf of M/S Deoghar Food Products. Accordingly, the present FIR has been lodged.

Cr. M.P No. 769 of 2008 (Rahul Kumar)

That on 14.2.2008 at about 3:45 pm raid was conducted wherein it was found that electricity theft is being conducted by Mr. Rahul Kumar by hooking wire illegally and using the said electricity in an oil meal. It was found that in that premise previously two an illegal electricity connection was cut by the board. Using the residential connection Oil Meal was made functional and Approximately, 18 thousand 5 hundred sixty seven Rs. Worth of electricity theft has been committed by the petitioner. During inspection it has also come to the notice that the petitioner has been illegal electricity connection at his home as well and beside 18,567/- further 61 thousand Rs. Worth of electricity theft has been committed by the petitioner. Accordingly, the present FIR has been lodged.

Cr.M.P. No. 140 of 2009 (Gyan Chand Agarwal)

That on 17.01.2009 from 1:15 pm to 4:45 pm raid was conducted at M/S Laxmi Business and Cement Co. Pvt. Ltd., Morangi and found that five seal of CTPT metering unit‟s secondary terminal cover were found to be tampered and duplicate. That seal of meter room door, two seal of outer cover of meter box, one seal of inner cover of meter box were also found to be duplicate and tampered. It has been alleged that with the help of duplicate and tampered seal theft of electricity has been done by the petitioner.

1 Crore 74 lakh approx. worth of electricity theft has been committed by the petitioner. Accordingly, the present FIR has been lodged.

Cr.M.P. No. 1902 of 2011 (Mehul Kumar Basant)

That on 15.4.2010 at 2pm M/S Nanak Ferro and Alloy Ltd., Ramgarh, raid was conducted and it was found that electricity theft was committed by inserting a foreign device in the CTPT metering unit thereby connecting it with secondary terminal. This way actual energy consumption has been misappropriated and theft has been committed. Approximately 1 Crore 88 lakhs 03 thousand 4 hundred forty-eight Rs. (Rs.1,88,83,448/- Worth of electricity theft has been committed by the petitioner. Accordingly, the present FIR has been lodged.

Cr.M.P. No. 08 of 2012 (Chandi Das Chakrawarty)

That on 21.10.2011 at was raid was conducted at Chinn Mastika Sponge Iron wherein it was found that paper seal affix at the door was torn but the red color polycarbonate seal was intact because the lever attached to the door easily detaches on pulling. It is alleged that such arrangement in locking system was made to reach metering system unauthorizedly. On inspection it was found that one side of six levels of metering cubical were deformed and broken. One phase of cable connected to transformer has been opened by breaking as such one third of total consumption is stolen. Thereafter, the petitioner tried to burn the cubical metering system as marks of burn has been found. Approximately, 1 Crore 82 lakh 29 thousand 9 hundred ninety-eight Rs. Worth of electricity theft has been committed by the petitioner. Accordingly, the present FIR has been lodged.

Cr.M.P. No. 1799 of 2012 (Rajendra Kumar Lodha)

That on 9.8.2012 at about 1:30 pm raid was conducted at Pradeep Rubber Enterprises, Chakuliya, East Singhbhum, wherein it was found that direct hooking was done from LT line to PVC wire for consuming illegal electricity in the premise. It has been further alleged that approximately 40 lakh 21 thousand 5 hundred nine Rs. 60 paise (40,21,509.60) worth of electricity theft has been committed by the petitioner. Accordingly, the present FIR has been lodged.

Cr.M.P. No. 644 of 2008 (Anand Kumar Saraf)

The prosecution case is based on the written report dated 28.04.2008 of the informant Prabhat Kumar, Asst.Elect. Engineer, Electric Supply Sub Division, Ramgarh wherein it has been alleged that the O.P.no.2 along with other officers of the Board inspected the meter of the petitioner in which it was found that the meter was interfered for getting the actual energy consumption not properly recorded. It has been alleged further that by way of stealing energy, an amount of approx. Rs.42.5 lacs has been lost to the Board.

Cr.M.P. No. 455 of 2008 (Ata Mohammad)

The prosecution in brief is that the FIR lodged upon written application made by the informant, namely, Ashok Kumar Srivastav (Junior Electrical Engineer, Hindpiri Division) dated nil alleging intrealia that on 17.3.2008 about 1 to 2.15 p.m. raid was conducted in Gwala Toli Road, Near Guru Nanak School and Nala Road area against persons committing theft of electricity along with other officers/ staff and armed forces. In his application he has given the details of the raid in which three persons have been found committing theft of electricity and have been imposed find of Rs.5300/-each. The name of the petitioner appears at sl.no.1 wherein it has been alleged that he was committing theft of electricity from main L.T line through hooking.

Cr.M.P. No. 247 of 2088 (Rajesh Kumar Modi)

The prosecution case is based on written report of O.P.No.2 as contained in his letter no.01 dated 7.2.2008 wherein it has been alleged that based on the information from the Remote Meter Reading Cell of the Board, the informant with other officers of the Board raided the premises of the petitioner at 2 p.m (mid day) on 7.2.2008 and allegedly found that two numbers of seal bits of meter box of LT-CT meter was tampered and the locking mechanism of CT-Box was tampered and thereby stealing of energy was done. The informant has alleged that by aforesaid act, loss of Rs.75,33,096/- was caused to the Board. The said report has been submitted with inspection report seizure list and other documents.

Cr.M.P. No. 1767 of 2007(Hanuman Prasad Agarawal &

Dipik Rungta)

The prosecution case is based on the written report dated 27.11.2007 of the informant Jainandan Kumar Singh, Junior Electric Engineer, Electric Supply Sub Division Ranchi wherein it has been stated that during course of routine inspection the petitioner no.1 having consumer no.RRD 7239 was found stealing electricity by bypassing the meter through an electric wire connected to the electric pool by hooking. It has further been alleged that the aforesaid premises was being used in the name and style of one Anindita Traders and Investment Pvt. Ltd. whose proprietor is one Deepak Rungta, the petitioner no.2 herein. It has been alleged that in the FIR due to theft of electricity by the petitioners Jharkhand State Electricity Board had suffered a loss to the tune of Rs.60,000/-(Sixty thousand only).

Cr.M.P.No.850 of 2008

The prosecution case is based on written report dated 5.6.2008 of informant Rajendra Ram, Asst.Electrical Engineer, Electric Supply Sub Division Chandil wherein it has been alleged that on inspection held on 04.06.2008 it has been found that the petitioner being owner of M/s Om Dayal Ingot and Steel Company Pvt. Ltd, was committing theft of electricity by influencing measurement of consumption through placing a foreign element in an unauthorized compartment by preparing the said compartment though wielding by breaking two seals of the secondary terminal of metering unit. It has also been alleged that by taking benefit of darkness the consumer and its representative fled away from the place of occurrence. The informant has alleged that because of theft of energy, the Board has suffered a loss of approximate Rs.5.41 crores.

Cr.M.P.No.860 of 2008

That the prosecution case is based on the written report dated 26.05.2008 of informant Mahadeo Murmu, Junior Electrical Engineer, Electric Supply Section, Ratu (Gramin) wherein it has been alleged that an inspection was conducted at the premises of the petitioner. It has been further alleged that in course of inspection, it was found that the extra chip, capacitor, died, censor, relay, bridge, rectifier were used inside the meter body causing energy theft. Finally, it has been alleged that because of the aforesaid act the Board has suffered loss of Rs.41,25,128/-.

5. I.A. No.5444 of 2021 and I.A No. 6351 of 2023 in Cr.M.P. No. 627 of 2005 and I.A No.6889 of 2018 in Cr.M.P. No.1902 of 2011 were allowed for amendment in prayer portion as cognizance has been taken by order dated 27.2.2021 and the learned court has been pleased to take cognizance under section 135 of the Electricity Act which was allowed by order dated 30.9.2021. Thus, the order taking cognizance is challenged in these two cases.

6. Mr. M.S. Mittal, the learned Senior counsel appearing for the petitioner has taken lead in all the cases and submits that in the cases the case has been registered under the IPC as well as Indian Electricity Act and the company has not been made accused and how the petitioners who are happened to be Directors or Partners are responsible are not disclosed in all the FIRs and he submits that once on behalf of the company certain act is done in the capacity of the Directors or partners the role is required to be disclosed in the FIR and to buttress his argument he referred to section 149 of the Indian Electricity Act, 2003. He submits that the provision made therein identical of Negotiable Instruments Act as well as of Contract Labour Act and the Minimum Wages Act and to buttress his this argument with regard to not making the company as accused in the FIR, he relied in the case of Shiv Kumar Jatia v. State of NCT of Delhi, (2019) 17 SCC 9, . Paragraph nos.21 and 28 are quoted hereinbelow:

21. By applying the ratio laid down by this Court in Sunil Bharti Mittal [Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609 [LQ/SC/2015/34] : (2015) 2 SCC (Cri) 687] it is clear that an individual either as a Director or a Managing Director or Chairman of the company can be made an accused, along with the company, only if there is sufficient material to prove his active role coupled with the criminal intent. Further the criminal intent alleged must have direct nexus with the accused. Further in Maksud Saiyed v. State of Gujarat [Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 [LQ/SC/2007/1133] : (2008) 2 SCC (Cri) 692] this Court has examined the vicarious liability of Directors for the charges levelled against the Company. In the aforesaid judgment this Court has held that, the Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company, when the accused is a company. It is held that vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. It is further held that statutes indisputably must provide fixing such vicarious liability. It is also held that, even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.

28. Having regard to the case law referred above by applying the facts of the case on hand we are of the view that the case of the appellant-Accused 2 Shiv Kumar Jatia in criminal appeal arising out of SLP (Crl.) No. 8008 of 2018 falls within one of the categories enumerated in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] [LQ/SC/1990/744] to invoke the inherent powers under Section 482 CrPC either to prevent the abuse of the process of court or otherwise to secure the ends of justice.

7. By way of relying on this judgment he submits that if any act has been done by the company the company is necessary party which is lacking in the case in hand. He further relied in the case of Sunil Bharti Mittal v. CBI, 2015 4 SCC 609 [LQ/SC/2015/34] on the same law point and he referred to paragraph no.42, 43 and 44 of the said judgment which are quoted hereinbelow:

42. No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.

43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.

44. When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. One such example is Section 141 of the Negotiable Instruments Act, 1881. In Aneeta Hada [Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661 [LQ/SC/2012/406] : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241] [LQ/SC/2012/406] , the Court noted that if a group of persons that guide the business of the company have the criminal intent, that would be imputed to the body corporate and it is in this backdrop, Section 141 of the Negotiable Instruments Act has to be understood. Such a position is, therefore, because of statutory intendment making it a deeming fiction. Here also, the principle of “alter ego”, was applied only in one direction, namely, where a group of persons that guide the business had criminal intent, that is to be imputed to the body corporate and not the vice versa. Otherwise, there has to be a specific act attributed to the Director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company.

8. He further submits that there are line of judgments on the same point and he further relied in the case of Pepsico India Holdings Private Limited v. Food Inspectors and Others, reported in (2011) 1 SCC 176, [LQ/SC/2010/1244] wherein at paragraph no.50 it has been held that merely a bald statement against the Director the case cannot be maintained. The paragraph no.50 of the said judgment is quoted below:

50. As mentioned hereinbefore, the High Court erred in giving its own interpretation to the decision of this Court in S.M.S. Pharmaceuticals Ltd. case [(2005) 8 SCC 89 [LQ/SC/2005/943] : 2005 SCC (Cri) 1975] [LQ/SC/2005/943] , which was reiterated subsequently in several judgments, some of which have been indicated hereinabove, and relying instead on the decision of Rangachari case [(2007) 5 SCC 108 [LQ/SC/2007/527] : (2007) 2 SCC (Cri) 460] , the facts of which were entirely different from the facts of this case. It is now well established that in a complaint against a company and its Directors, the complainant has to indicate in the complaint itself as to whether the Directors concerned were either in charge of or responsible to the Company for its day-to-day management, or whether they were responsible to the Company for the conduct of its business. A mere bald statement that a person was a Director of the Company against which certain allegations had been made is not sufficient to make such Director liable in the absence of any specific allegations regarding his role in the management of the Company.

9. He further submits that identical was the situation in the case of G.N. Verma v. State of Jharkhand, (2014) 4 SCC 282, [LQ/SC/2014/264] wherein at paragraph no.19 and 20, it has held as under

19. It has been laid down, in the context of Sections 138 and 141 of the Negotiable Instruments Act, 1881 in National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal [National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal, (2010) 3 SCC 330 [LQ/SC/2010/194] : (2010) 1 SCC (Civ) 677 : (2010) 2 SCC (Cri) 1113] that Section 141 is a penal provision creating a vicarious liability. It was held as follows: (SCC p. 336, para 13)

13. … It is therefore, not sufficient to make a bald cursory statement in a complaint that the Director (arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner Respondent 1 was in charge of or was responsible to the accused Company for the conduct of its business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability.”

(emphasis in original)

It was then concluded: (SCC p. 345, para 39

“39. (i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction.”

20. Insofar as the criminal complaint is concerned, it does not contain any allegation against G.N. Verma. The only statement concerning him is that he was the Chief General Manager/deemed agent of the mine and was exercising supervision, management and control of the mine and in that capacity was bound to see that all mining operations were conducted in accordance with the Act, the Rules, Regulations, Orders made thereunder. In the face of such a general statement, which does not contain any allegation, specific or otherwise, it is difficult to hold that the Chief Judicial Magistrate rightly took cognizance of the complaint and issued summons to G.N. Verma. The law laid down by this Court in Harmeet Singh Paintal [National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal, (2010) 3 SCC 330 [LQ/SC/2010/194] : (2010) 1 SCC (Civ) 677 : (2010) 2 SCC (Cri) 1113] (though in another context) would be squarely applicable. Under the circumstances, we are of the opinion that on the facts of this case and given the absence of any allegation in the complaint filed against him no case for proceeding against G.N. Verma has been made out.

10. Relying on this judgment, Mr. Mittal, the learned Senior counsel submits that only on bald and cursory statement in a complaint the Director or the Partner against them vicarious liability cannot be fastened and he submits that on that ground, the case is fit to be allowed. He further draws the attention of the Court to Annexure-5 which is an Inspection report dated 10.6.2005 first in Cr.M.P.No.627 of 2005 and submits that in the inspection report only allegation of tampering of seals wherein in the FIR unnecessarily it has been alleged that the current were made less in two phases of the supply made to the petitioner. He submits that in Cr.M.P. No.1902 of 2011, no inspection report has been filed. He submits that the FIR has been registered under section 39 and 44 of the Indian Electricity Act, 1910 and thereafter the said Act was repealed by a new Electricity Act, which came in the year 2003 wherein the FIR has been registered in the year 2013. He submits that in view of Electricity Supply Regulation Code, 2005 particularly regulation 15.8 (vii) no case of theft is required to be registered only on the ground of seals of the meter missing or tampered. He submits that in view of section 135 of the Electricity Act read with section 2(C) the said rule was valid till 2010. He submits that registration of the FIR on the ground of seal itself is bad in law in view of the provisions made in the Electricity Act as well as Electricity Supply Regulation Code and the Indian Electricity Rules, 1956. He draws the attention of the Court to Rule 138 of the Indian Electricity Act 2003. He submits that the penalty for breaking the seal is made therein. He submits that once the special law is there, the IPC sections are not attracted and unnecessarily the IPC sections are inserted in the FIR and cognizance is taken under those sections. On the point of breaking of seal does not constitute theft and he relied in the case of Ramchandra Prasad Sharma v. State of Bihar and Another, AIR 1967 SC 349 [LQ/SC/1966/45] , paragraph nos.7 and 12 of the said judgment are quoted hereinbelow:

7. In our opinion, the conviction of the offences under Section 39 is unsustainable. It is no doubt true that the meter had been tampered with. But there is nothing to show that there was any perfected artificial means in existence so as to raise the presumption of dishonest abstraction under Section 39 prior to the stopping of the meter. The mere fact that the consumption of energy between June 28 and July 1, 1958 was about 300 units per day whereas it was much less prior to that date does not necessarily lead to the inference that in the past there was dishonest abstraction of electric energy. The rise in consumption between June 28 and July 1, could be accounted for by circumstances such as longer working hours, user of current in a wasteful manner, user of current for more appliances and so on. In the circumstances, therefore, we do not think that the High Court was right in convicting the appellants under Section 39 of the Act. We, therefore, set aside their convictions and sentences in respect of the offence under Section 39.

12. Insofar as the conviction under Section 39 is concerned the matter stands on a different footing. It is not sufficient to say that a meter had been tampered with and that it was under the control of the accused person. It is further necessary to show that there was dishonest abstraction, consumption or use of electrical energy by the accused person. Before raising a presumption thereunder that there was dishonest abstraction the presence of an artificial means which would render abstraction of energy possible has to be established. Here we have three-phase meters and, therefore, unless all are tampered with abstraction of energy without fear of detection is not possible. It is difficult to presume that the appellant would have knowingly done something to the meter which would not have escaped detection of a Meter Reader and facilitated the abstraction of electric energy. In fact what he had said in his confession was that Jai Narain, a Meter Reader of the company had done something to the meter. That may or may not be so. Jai Narain who was co-accused with the appellant was acquitted by the trial court and his acquittal was not challenged by the State. There is no material on the basis of which it could be held that there was either a perfected artificial means of abstraction or there was in fact any abstraction of electrical energy. In the circumstances the presumption permissible under Section 39 can not be raised in favour of the prosecution. It follow, therefore, that the appellant's conviction under Section 39 is unsustainable. We accordingly set it aside as also the sentences passed upon him in respect of that offence.

11. He further relied in the case of Kamaljeet Singh v. Bihar State Electricity Board, 2010 3 PLJR 514, paragraph no.2 of the said judgment is quoted below:

2. Here, I may point out the second proviso to Sub-section (sic (1) of Section) 135 and (s/cthat) does draw a presumption of theft of electricity but that is limited to cases where artificial means or means not authorized by the Board are found to exist. Here no such allegation being there even the statutory presumption of theft does not arise. Then, merely because seals were found tampered, there is no legal or factual presumption that it would be a case of meter tampering and as such a case of theft of electricity. It was then submitted that the last meter reading was done less than a month back, no report of either meter tampering and/or still tampering in any manner and as such if at all the period of theft could only go as far back as the date of last meter reading while passing the final assessment order by the Assessing Authority. So far as the second contention is concerned, the Assessing Officer brushed it aside holding that the meter reader was not required to verify the seals. I have my serious doubts in this regards. If seals are found broken or tampered with, he is duty bound to report the same information. Not reporting the same would only lead to the presumption that there was no seal tampering when reading was taken. So far as first aspect is concerned, the Assessing Authority has not cared to discuss the same. There is yet third consideration. The meters are electronic meters which record all incidence, including any attempt to tamper, the same, these are stored in the microchip contained therein. If all definite information is available then instead of relying on definite information, can the authorities be permitted to work on conjectures and surmises. In my view, these are questions which had to be considered in their proper perspective.

12. Now on the same line, he further relied in the case of Arvindam Motors v. E.S.E.S Rajdhani Power Limited, AIR 2007 Delhi 85. Relying on these judgments, he submits that it has been held in all the cases that the breaking of seal does not constitute theft wherein the allegations are only to that effect and in view of that, the cases are fit to be interfered by this Court under section 482 of the Cr.P.C. He submits that in one of the case without inspection report the FIR has been registered which is one of the parameters for registering the FIR and to buttress he relied in the case of M/s Himadri Steel Private Limited v. Jharkhand Urja Vikas Nigam Limited, AIR 2019 (Jhar) 28, [LQ/JharHC/2018/1825] and he relied in paragraph no.12. He submits that on the point of special Act he has submitted the judgment quoted hereinabove and he relied in the case of Avtar Singh v. State of Punjab, AIR 1965 SC 666 [LQ/SC/1964/210] , paragraph nos.3 and 5 of the said judgment are quoted below:

3. The question whether theft of electricity is an offence against the Act or not has come up before the High Courts on several occasions and the decisions disclose a diversity of opinion. It will be convenient to refer to these opinions at this stage. In State v. Maganlal Chunilal Bogawat [AIR (1956) Bom 354] [LQ/BomHC/1955/306] , Tulsi Prasad v. State [(1964) I Cr LJ 472] and Public Prosecutor v. Abdul Wahab [(1964) LW (Madras) (FB) 271] , it was held that the theft was not an offence against the Act while the contrary view was taken in Emperor v. Vishwanath [(1937) ILR All 102] , Dhoolchand v. State [(1956) ILR 6 Raj 856] and In re P.N. Venkatarama Naicker [AIR (1962) Mad 497] [LQ/MadHC/1962/2] . In our opinion, the view expressed by the Allahabad High Court in Emperor v. Vishwanath [(1937) ILR All 102] is the correct one. The matter was there put in these words:“The learned Sessions Judge was of opinion that the offence was not an offence against the Act because it was one punishable under the provisions of Section 379 of the Indian Penal Code. We think that this should not have been an offence under Section 379 of the Indian Penal Code if it had not been for the provisions of Section 39 of the Indian Electricity Act. It was, therefore, an offence which was created by that section and we are of opinion that the legislature intended Section 50 to apply to an offence of this nature”. We are in complete agreement with this statement of the law.

5. With regard to the first reason that Section 39 of the Act extended the operation of Section 378 of the Code, it seems to us beyond question that Section 39 did not extend Section 378 in the sense of amending it or in any way altering the language used in it. Section 378, read by itself even after the enactment of Section 39, would not include a theft of electricity for electricity is not considered to be moveable property. The only way in which it can be said that Section 39 extended Section 378 is by stating that it made something which was not a theft under Section 378, a theft within the meaning of that section. It follows that if Section 39 did so, it created the offence itself and Section 378 did not do so. In this view of the matter we do not think it possible to say that the thing so made a theft and an offence, became one by virtue of Section 378.

13. He further relied in the case of Ashwini Kumar v. State of Jharkhand (Cr.M.P. No.1014 of 2021) paragraph no.7 and relying on this judgment he submits that in this background this Court may quash the entire criminal proceeding as the company has not been made the party and the nature of role played by the petitioners is not disclosed in the FIR. He submits that if the special law is there, the IPC sections are not attracted and only missing and tempering with the seal is not a theft as has been held in several judgments. On these grounds, he submits that the entire criminal proceeding may kindly be quashed.

14 The argument advanced by Mr. Mittal, the learned Senior counsel appearing on behalf of the petitioners in the cases indicated hereinabove has been adopted by all the learned counsels appearing for the petitioners.

15. However, Mr. Siddarth Roy, the learned counsel appearing on behalf of the petitioner in Cr.M.P.No. 2088 of 2017, submits that the petitioner of that case was not related with the company in question and was not named in the FIR, however, subsequently it was found that he was the Manager and the cognizance has been taken. However, the show cause has also been issued.

16. Mr. Pasari, the learned counsel appearing for the petitioners in Cr.M.P as referred above adopted the argument of Mr. Mittal, the learned Senior counsel, however, he added by way of saying that the said property has come in partition in the name of his brother, however, the petitioner has been named as an accused and that has come in investigation. Mr. Dhananjay Pathak, the learned counsel appearing for the petitioner in the cases referred above submits that in view of section 149 of the Company Act the company has not been made accused and the cases are fit to be interfered with. He submits that section 126 and 135 of the Indian Electricity Act, 2003 are on different parameters and rest of the arguments advanced by Mr. Mittal, the learned Senior counsel has been adopted by them.

17. Mr. Ajit Kumar, the learned Senior counsel appearing for the petitioners in the respective cases as referred above, he also adopted the argument of Mr. Mittal, the learned Senior counsel and he added by way of submitting that the petitioner was not the Director when the case was registered he has already resigned and the same was also intimated by way of Annexure-6 at page 36, however, unnecessarily the case has been registered against the petitioner. He also refers sections 126, 136 and 138 of the Indian Electricity Act, 2003 and submits that section 126 meant for assessment and section 135 is the penal section and it is the complete Code in view of the Act itself and when the petitioner was not the participator he has unnecessarily been made an accused.

18. Per contra, Mr. Nilesh Kumar, the learned counsel appearing on behalf of the respondent J.U.V.N.L. submits that there are serious allegations against the petitioners who happened to be the Director of firm, however, all these petitioners have signed an agreement with the respondent J.U.V.N.L and only the petitioners are liable for the said conduct. He submits that there are massive loss to the respondent JUVNL and he further submits that in the cases as enumerated below, there are loss to the tune of as per the chart given below:

19. He further submits that in the cases relied by the learned counsels for the petitioners so far the not making the company as accused were on different footings and in those cases the allegations were made of section 420 of the IPC and either under section 141 of the Negotiable Instruments Act and in the facts of the present case, those cases are not attracted and there is no agreement in those cases between the accused and the complainant and in that parameters the judgments relied by the learned counsels appearing for the petitioners are not helping them. He further submits that section 149 of the Indian Electricity Act 2003 also stipulates that the persons who are looking into the affairs of the day to day of the company and in his knowledge such things are happen they are also liable. He submits that in view of the agreement section 149 of the Act has got no much consequence in the cases which are here and that can only be a subject matter of trial and this disputed question of fact may not be considered by this Court at this Stage. He submits that the Explanation of judgment in the case of “Awtar Singh”, has been considered by the Hon‟ble Supreme Court in the case of Satya Narayan Prasad v. Bhagwan Ramdas @ Bhagwan Sah and Others, (1995) Supp. 4 SCC 629, wherein it has been held that dishonest abstraction of electricity mentioned in the Act is also „theft‟ and he refers to paragraph no. 3 of the said judgment, which is quoted below:

3. Section 39 of the Electricity Act is in the following terms:

Theft of energy.—Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Penal Code, 1860 and the existence of artificial means for such abstraction shall be prima facie evidence of such dishonest abstraction.”

It can be seen that Section 39 as such does not prescribe any sentence but yet it creates an offence by raising a fiction, namely, that whoever has dishonestly used or abstracted any energy shall be deemed to have committed the theft within the meaning of Penal Code, 1860. Therefore, dishonest abstraction of electricity is deemed to be an offence under the Penal Code by virtue of this fiction created under Section 39 of the Electricity Act. Interpreting this section, this Court in Avtar Singh case [(1965) 1 SCR 103 [LQ/SC/1964/210] : AIR 1965 SC 666 [LQ/SC/1964/210] ] held: (SCR p. 107-A-B)

“To put it shortly, dishonest abstraction of electricity mentioned in Section 39 cannot be an offence under the Code for under it alone it is not an offence, the dishonest abstraction is by Section 39 made a theft within the meaning of the Code, that is, an offence of the variety described in the Code as theft. As the offence is created by raising a fiction, the section which raises the fiction, namely Section 39 of the Act, must be said to create the offence. Since the abstraction is by Section 39 to be deemed to be an offence under the Code, the fiction must be followed to the end and the offence so created would entail the punishment mentioned in the Code for that offence. The punishment is not under the Code itself for under it abstraction of energy is not an offence at all.”

It looks as though the High Court has only referred to the last sentence and overlooked the fact that Section 39 expressly made dishonest abstraction of electricity, as offence punishable under the Code. Section 39, therefore, makes something which was not a theft within the Penal Code, a theft within it, and consequently that section also makes theft punishable in the manner provided in the Code because the illegal abstraction of electricity is deemed to be a theft within the meaning of Code and it must be deemed for all purposes a theft including the purpose of imposing the punishment. Therefore, in deciding whether an offence of theft as provided under Section 39 is made out or not the Court has to read Section 39 along with provision of IPC dealing with theft.

20. Section 39 of the Electricity Act is in the following terms:

“Theft of energy.—Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Penal Code, 1860 and the existence of artificial means for such abstraction shall be prima facie evidence of such dishonest abstraction.”

21. He submits that Section 39 as such does not prescribe any sentence but yet it creates an offence by raising a fiction, namely, that whoever has dishonestly used or abstracted any energy shall be deemed to have committed the theft within the meaning of Penal Code, 1860. Therefore, dishonest abstraction of electricity is deemed to be an offence under the Penal Code by virtue of this fiction created under Section 39 of the Electricity Act. Interpreting this section, the Court in Avtar Singh case [(1965) 1 SCR 103 [LQ/SC/1964/210] : AIR 1965 SC 666 [LQ/SC/1964/210] ] held: (SCR p. 107-A-B)

“To put it shortly, dishonest abstraction of electricity mentioned in Section 39 cannot be an offence under the Code for under it alone it is not an offence, the dishonest abstraction is by Section 39 made a theft within the meaning of the Code, that is, an offence of the variety described in the Code as theft. As the offence is created by raising a fiction, the section which raises the fiction, namely Section 39 of the Act, must be said to create the offence. Since the abstraction is by Section 39 to be deemed to be an offence under the Code, the fiction must be followed to the end and the offence so created would entail the punishment mentioned in the Code for that offence. The punishment is not under the Code itself for under it abstraction of energy is not an offence at all.”

22. He submits that it has been held that it looks as though the High Court has only referred to the last sentence and overlooked the fact that Section 39 expressly made dishonest abstraction of electricity, as offence punishable under the Code. Section 39, therefore, makes something which was not a theft within the Penal Code, a theft within it, and consequently that section also makes theft punishable in the manner provided in the Code because the illegal abstraction of electricity is deemed to be a “theft” within the meaning of Code and it must be deemed for all purposes a theft including the purpose of imposing the punishment. Therefore, in deciding whether an offence of theft as provided under Section 39 is made out or not the Court has to read Section 39 along with provision of IPC dealing with theft.

23. He submits that the arguments of the learned counsels appearing for the petitioners is misconceived one and in a case of this nature wherein the allegations are made of theft the case of quashing is not made out and to buttress his arguments, he relied in the case of Jagmodhan Mehatabsing Gujaral v. State of Maharashtra, (2006) 8 SCC 629 [LQ/SC/2006/1032] . Paragraph nos.19, 23 and 29 of the said judgment are quoted below:

19. It was submitted by the appellants that the complainant was not authorised to file FIR. The trial court had considered this argument of the appellants. The trial court has correctly mentioned in its judgment that by the amendment in the provisions of Section 50, the words “or a State Electricity Board” have been inserted and the officers of the State Electricity Board or a person aggrieved by the theft are authorised by the notification to lodge a complaint. The complainant was fully justified in filing the complaint. We do not find any merit in this argument of the appellants.

23. The trial court had dealt with the aspect of giving 48 hours' notice before conducting the raid. In a case of a surprise raid 48 hours' notice to the appellants is not envisaged by the legislature and otherwise also it would have been counterproductive, because there was a strong possibility of obliterating and/or destroying the entire evidence to connect the appellants with the crime. Moreover, even if it is so accepted, it is on record that the watchman and Bapu Bhagwan Alder were found present in the premises on behalf of the appellants and that they did assist the raiding team to carry on their work. It is reported by the police in reply to summons that Bapu Bhagwan Alder was serving in some glass factory in Pune, but he could not be traced out for the purpose of tendering the evidence before the court. In fact, it was possible for the appellants to bring him in the box, at least as defence witness, to state that he had no concern with the industry of the accused. Moreover, the employment record or muster roll of the industry of the accused was not brought for inspection by this Court. Suppression of this clearly gives rise to considerable substance in the allegations of the prosecution. By and large this negatives the arguments on behalf of the appellants that the raid is illegal or otherwise defective. Therefore, we do not find any substance in this submission made by the appellants.

29. Large-scale theft of electricity is a very alarming problem faced by all the State Electricity Boards in our country, which is causing loss to the State revenue running in hundreds of crores of rupees every year. In our considered view, after proper adjudication of the cases of all those who are found to be guilty of the offence of committing theft of electricity; apart from the sentence of conviction, the court should invariably impose heavy fine making theft of electricity a wholly non-profitable venture. The most effective step to curb this tendency perhaps could be to discontinue the supply of electricity to those consumers temporarily or permanently who have been caught abstracting electricity in a clandestine manner on more than one occasion. The legislature may consider incorporating this suggestion as a form of punishment by amending Section 39 of the Electricity Act, 1910.

24. He further submits that in view of section 135 and 136 of the Indian Electricity Act read with section 151(B) of the said Act, which speaks of taking cognizance, the inspection is not required and he submits that once the case is cognizable in view of section 151 of the said Act, the argument with regard to inspection prior to lodging of the FIR is misconceived one. He submits that the section 126 and section 135 of the Indian Electricity Act, 2003 are on other parameters and he submits that section 126 of said Act speaks of „assessment of energy‟ wherein section 135 of the Indian Electricity Act, 2003 speaks of „electricity theft‟. He submits that this aspect of the matter has been considered by the Hon‟ble Supreme Court in the case of West Bengal State Electricity Distribution Company Limited and Others v. Orion Metal (P) Ltd. and Others, (2020) 18 SCC 588, paragraph nos.2.9, 5, 8 and 15 of the said judgment are quoted below:

2.9. In the intra-court appeal, before the Division Bench, the respondents have raised a ground that two parallel proceedings i.e. the criminal complaint before the competent court and also assessment proceedings under Section 126(1) of the Act cannot go simultaneously. Precisely, it was the case of the respondents that once a complaint is filed alleging theft of energy under Section 135(1)(a) of the Act, no assessment is permissible under Section 126(1) of the Act.

5. The learned Senior Counsel appearing for the appellants has submitted that the High Court has misconstrued the provisions under Sections 126, 135 and 154 of the Act and erroneously allowed the appeal and quashed the assessment order made by the appellants under Section 126(1) of the Act. It is submitted by the learned Senior Counsel that, whenever there is an allegation of theft of energy by the consumer, even after lodging a complaint for commission of such offence before the police, it is always open for the appellants to make provisional and final assessment to recover loss of energy in exercise of power under Section 126(1) of the Act. Precisely, it is submitted that in all cases covered by Section 135 of the Act, it is open for the authorities to make provisional assessment under Section 126 of the Act. It is submitted that the power conferred under Section 126(1) of the Act to make provisional assessment, will not depend, whether consumer seeks restoration of supply or not, after disconnection of supply.

5.1. It is submitted that to prove theft of energy before the Special Court, case has to be proved beyond reasonable doubt and further the element of mens rea is a sine qua non to prove the guilt of the accused. It is submitted that such degree of proof is not required for the purpose of assessing loss of energy under Section 126(1) of the Act. The learned Senior Counsel has also placed reliance on the judgment in Southern Electricity Supply Co. of Orissa Ltd. v. Sri Seetaram Rice Mill [Southern Electricity Supply Co. of Orissa Ltd. v. Sri Seetaram Rice Mill, (2012) 2 SCC 108] [LQ/SC/2011/1406] .

8. Prior to the Electricity Act, 2003, generation and supply of electricity was governed by the provisions under the Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998. With the policy of the Government to encourage private sector participation in generation, transmission and distribution of energy and with the objective of distancing regulatory responsibilities from the Government to the Regulatory Commissions, it was felt that there is a need for harmonising and rationalising the provisions of the electricity by bringing a new legislation. That is how the Electricity Act, 2003, was enacted and brought into force. In the Objects and Reasons, a specific reference is made to incorporate provisions relating to theft of electricity, to have a revenue focus. Part XII of the Act deals with the provisions relating to investigation and enforcement and Part XIV of the Act deals with the provisions relating to offences and penalties. The constitution of Special Courts and procedure and powers of the Special Courts are covered by Part XV of the Act.

15. We also do not find any valid reason for making a distinction as made by the High Court in applying Section 126 of the Act. From the scheme of the Act, it appears that after inspection team notices unauthorised use of energy by tampering the meter, the authorities can disconnect the power supply immediately and make immediate assessment for loss of energy, by invoking power under Section 126(1) of the Act. The term “unauthorised use of energy” is of wide connotation. There may be cases of unauthorised use of energy, not amounting to theft, which are cases viz. exceeding the sanctioned load or using the electricity in the premises where its use is not authorised, etc. But at the same time, when there is an allegation of unauthorised use of energy by tampering the meter, such cases of unauthorised use of energy include “theft” as defined under Section 135 of the Act. The power conferred on authorities for making assessment under Section 126(1) of the Act and power to determine civil liability under Section 154(5) of the Act, cannot be said to be parallel to each other. In this regard, we are of the view that the High Court has committed an error in recording a finding, that both proceedings cannot operate parallelly. In a given case where there is no theft of energy, amounting to unauthorized use of energy, in such cases no complaint of theft can be lodged as contemplated under Section 135 of the Act. In such cases for loss of energy, on account of unauthorized use of energy not amounting to theft, it is always open for the authorities to assess the loss of energy by resorting to power under Section 126(1) of the Act. In cases where allegation is of unauthorized use of energy amounting to theft, in such cases, apart from assessing the proceedings under Section 126(1) of the Act, a complaint also can be lodged alleging theft of energy as defined under Section 135(1) of the Act. In such cases, the Special Court is empowered to determine civil liability under Section 154(5) of the Act. On such determination of civil liability by the Special Court, the excess amount, if any, deposited by the petitioner, is to be refunded to the consumer. It is a settled principle that to prove the guilt of the accused in a criminal proceeding, authorities have to prove the case beyond reasonable doubt and the element of mens rea is also to be established. On the other hand, such a strict proof is not necessary for assessing the liability under Section 126(1) of the Act.

25. He further submits that supply leading to malpractices which may fall within the expression of „unauthorized use of electricity‟ under section 135 of the Act in the offence of theft of electricity which has been held in the case of Executive Engineer, Electricity Supply Company v. Shri Sitaram Rice Mills, (2012) 2 SCC 108 [LQ/SC/2011/1406] . He submits that based on that the Hon‟ble Supreme Court has further considered this aspect of the matter in the case of Kerala State Electricity Board and Others v. Thomas Joseph and Others, 2022 SSC Online SC 1737, paragraph no.10 of the said judgment is quoted below:

10. In Seetharam Rice Mill's case (supra) the Apex Court has stated that, Section 126 of the Act, which embodies a complete process for assessment, determination and demand has a purpose to achieve, i.e., to put an implied restriction on such unauthorised consumption of electricity. The provisions of Section 126 of the Act are self-explanatory, which are intended to cover situations other than the situations specifically covered under Section 135 of the Act; which would be applicable to cases where there is no theft of electricity but the electricity is being consumed in violation of the terms and conditions of supply leading to malpractices, which may squarely fall within the expression ‘unauthorised use of electricity’. Section 135 of the Act deals with an offence of theft of electricity, which squarely falls within the dimensions of criminal jurisprudence, and mens rea is one of the relevant factors for finding a case of theft. On the contrary, Section 126 of the Act does not speak of any criminal intendment, which does not have features or elements which are traceable to the criminal concept of mens rea. Thus, the expression ‘unauthorised use of electricity’ under Section 126 of the Act deals with cases of unauthorised use, even in absence of intention. As such, intention is not the foundation for invoking powers of the competent authority and passing of an order of assessment under Section 126 of the Act.

26. Mr. Nilesh Kumar, the learned counsel appearing on behalf of the respondent J.U.V.N.L submits that the relying on the judgments submits that all the aspects with regard to the controversy which are the subject matter of these petitions has been considered in all the above cases and in view of that this Court may not interfere at this stage. He submits that in Cr.M.P. No.1799 of 2012, Cr.M.P. No.140 of 2009, Cr.M.P. No.195 of 2008, and Cr.M.P. No.769 of 2008, there are allegations of taking the electricity by way of making hooking, he submits that if hooking is there, which has been found by the raiding party, the case has been rightly registered and he submits that the proceeding may not be quashed at this stage. He further submits that so far Cr.M.P.No. 1902 of 2011 is concerned, which is with regard to Kuju P.S.Case No.109 of 2010, the two of the petitioners have already filed A.B.A. No.3617 of 2023 and they have been allowed anticipatory bail by order dated 19.7.2023 with condition of deposition of Rs.50 lacs.

27. By way of reply, Mr. Mittal, the learned Senior counsel appearing for the petitioners in respective cases referred above, submits that in view of the special law, the IPC sections are not attracted and he submits that the agreement has been signed on behalf of the company and in view of that the argument advanced by the learned counsel for the JUVNL is not tenable. He submits that on the basis of the inspection report, the FIR is not based on that and he submits that additional things have been added in the FIR. He submits that the inspection report is mandatory. He further submits that the judgments relied by the learned counsel for the respondent-JUVNL are on the point of assessment and those judgments are not attracted in the case in hand. On these he submits that the arguments advanced by the learned counsel appearing for the respondent JUVNL may not be put in for deciding of this case. He submits the amount alleged in the FIR has been further reduced in some case on assessment.

28. The learned counsel appearing on behalf of the respondent State and after the argument of respondent JUVNL further submits that there is admitted fact there was a theft and the learned court has rightly taken cognizance.

29. In view of the above submission of the learned counsels appearing on behalf of the parties, the Court has gone through the contents of the materials on record including each and every contents of the FIR of each cases. Apart from Cr.M.P.No. 1799 of 2012 and Cr.M.P. 769 of 2008 in all cases the inspection report is there. In two of the cases only the cognizance order has been brought on record in Cr.M.P.No.627 of 2007 and in Cr.M.P. No.1799 of 2012 and in rest of the case the learned counsels appearing on behalf of the petitioners pointed out that they are not in a position to say whether the cognizance has been taken or not. They submits that they presume that there is no progress as the proceeding was stayed by this Court. In the two cases, wherein the cognizance order in Cr.M.P.No.627 of 2007 and 1799 of 2012 and the Court finds that the learned court has taken the cognizance under the Indian Electricity Act, 2010. In view of the cognizance order the argument advanced by Mr. Mittal, the learned Senior counsel with regard to special Act is not required to be considered by this Court in deciding the petitions except the case of case of Mr. Sidharth Roy, the learned counsel appearing on behalf of the petitioner in Cr.M.P.No.769 of 2008. It is an admitted fact that the electricity connection has been provided in the premises of the petitioners by the respondent JUVNL. The petitioners have signed agreement with the respondent JUVNL and pursuant to that the said electricity has been provided. Much emphasis has been made on the point that the company is not made an accused and in absence of the company the vicarious liability cannot be fastened and the Court is required to consider as to whether in view of the agreement entered by the petitioners who are the signatory of the agreement, vicarious liability can be fastened upon the them or not and the company is not the accused that can be ground of quashing of the entire criminal proceeding at the initial stage wherein in some of the cases even the cognizance has also not been brought. The answer is simply no in view of the fact that if such a company commits an offence involving mens rea it would normally with the intent and action of that individual who would act on behalf of the company. However, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statutes specifically provides. In the case in hand, the petitioners have entered into an agreement with the respondent JUVNL for supply of the electricity. Thus, it is disputed question of facts which can be the subject matter only of the trial and in this regard a reference may be made to the case of Shiv Kumar Jatia v. State of N.C.T of Delhi, (2019) 17 SCC 193 [LQ/SC/2019/1319] wherein at paragraph nos.19 and 21 it has been held as under

19. The liability of the Directors/the controlling authorities of company, in a corporate criminal liability is elaborately considered by this Court in Sunil Bharti Mittal [Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609 [LQ/SC/2015/34] : (2015) 2 SCC (Cri) 687] . In the aforesaid case, while considering the circumstances when Director/person in charge of the affairs of the company can also be prosecuted, when the company is an accused person, this Court has held, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. At the same time it is observed that it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides for. It is further held by this Court, an individual who has perpetrated the commission of an offence on behalf of the company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Further it is also held that an individual can be implicated in those cases where statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.

21. By applying the ratio laid down by this Court in Sunil Bharti Mittal [Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609 [LQ/SC/2015/34] : (2015) 2 SCC (Cri) 687] it is clear that an individual either as a Director or a Managing Director or Chairman of the company can be made an accused, along with the company, only if there is sufficient material to prove his active role coupled with the criminal intent. Further the criminal intent alleged must have direct nexus with the accused. Further in Maksud Saiyed v. State of Gujarat [Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 [LQ/SC/2007/1133] : (2008) 2 SCC (Cri) 692] this Court has examined the vicarious liability of Directors for the charges levelled against the Company. In the aforesaid judgment this Court has held that, the Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company, when the accused is a company. It is held that vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. It is further held that statutes indisputably must provide fixing such vicarious liability. It is also held that, even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.

30. The judgments relied by the learned counsels appearing on behalf of the petitioners with regard to the company not made an accused, are not in dispute. Relying on those judgments, this Court has also interfered in one of the case and quashed the F.I.R in the case of S.K. Goel and Others v. State of Jharkhand, (2022) SCC Online (Jhar) 652, which has also been relied by Mr. Mittal, the learned Senior counsel appearing for the petitioners which has been affirmed by the Hon‟ble Supreme Court. In that case considering the F.I.R in view of the SEBI Act and found that for the civil action the FIR has been registered and in those parameters this Court has quashed the FIR which has been affirmed by the Hon‟ble Supreme Court. In the case in hand, there are allegation of theft of the electricity and in atleast four of the cases it has been pointed out that the electricity was being taken by way of hooking. In view of these allegations it cannot be said that it was without the knowledge of the petitioners who are running the company and this disputed question of fact can only be a subject matter of trial. Accordingly, first point argued by Mr. Mittal, the learned Senior counsel appearing on behalf of the petitioners with regard to not making the company as accused, is not fatal of proceeding the trial and that can be proved only in the trial. The inspection is necessary for registration of the FIR which was one of the grounds taken by the petitioners is also not tenable in view of the fact that in the four cases it has been found that the electricity was being taken up by way of hooking and for that the FIR has been registered. There is no doubt that section 126 is meant for assessment and there is procedure of assessment, however, section 135 of the Indian Electricity Act speaks of theft and the punishment is prescribed therein. The terms unauthorized use of energy is of wide connotation. The unauthorized use of energy includes theft as has been defined under section 135 of the Indian Electricity Act. The power conferred upon the authorities for making assessment under section 126(1) of the Act empowered the civil liability under section 154(5) of the Act cannot be said to be parallel to each other and this has been answered by the Hon‟ble Supreme Court in the case of West Bengal Electricity Distribution Company (supra) on which reliance has been placed by the learned counsel appearing on behalf of the respondent JUVNL. It is well settled that when exercising jurisdiction under section 482 Cr.P.C, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of accusation would be sustained or not That is the function of the trial Judge. Judicial process, no doubt, should not be an instrument of operation of needless harassment. The Courts should circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing the process. The scope of exercise of power under section 482 Cr.P.C and the category of cases where the High Court may exercise its power relating to cognizance offences to prevent abuse of process of any court or otherwise to secure the ends of justice. Where sit on in some of the case including the case of State of Haryana v. Bhajanlal, (1992) 1 Supp. 335. This aspect of the matter has been considered by the Hon‟ble Supreme Court in the case of State of M.P. v. Awadhesh Krishna Gupta, (2004) 1 SCC 691 [LQ/SC/2003/1170] wherein at paragraph nos. 10 and 11, it has been held as under:

10. In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt, should not be an instrument of oppression or needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to shortcircuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] [LQ/SC/1990/744] . A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of the rare cases. The illustrative categories indicated by this Court are as follows : (SCC pp. 378-79, para 102)

“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

11. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. (See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 [LQ/SC/1992/567] : 1993 SCC (Cri) 36 [LQ/SC/1992/567] : AIR 1993 SC 892 [LQ/SC/1992/567] ] and Raghubir Saran (Dr) v. State of Bihar [AIR 1964 SC 1 [LQ/SC/1963/64] : (1964) 1 Cri LJ 1] .) It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decide the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar [1990 Supp SCC 686 : 1991 SCC (Cri) 142 : AIR 1990 SC 494 [LQ/SC/1989/571] ] , State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 [LQ/SC/1991/186 ;] : 1992 SCC (Cri) 192] [LQ/SC/1991/186 ;] , Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 [LQ/SC/1995/992] : 1995 SCC (Cri) 1059] [LQ/SC/1995/992] , State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651 [LQ/SC/1999/181] : 1999 SCC (Cri) 304] , State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 [LQ/SC/1996/289] : 1996 SCC (Cri) 497] , Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397 [LQ/SC/1996/2232] : 1997 SCC (Cri) 415] , Satvinder Kaur v. State (Govt. of NCT of Delhi) [(1999) 8 SCC 728 [LQ/SC/1999/962] : 1999 SCC (Cri) 1503] and Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 [LQ/SC/1999/252] : 1999 SCC (Cri) 401 [LQ/SC/1999/252] : AIR 1999 SC 1216 [LQ/SC/1999/252] ] .]

31. A reference may be made to the judgments rendered by the Hon‟ble Supreme Court in the cases of V.Y.Josh v. State of Gujarat, (2009) 3 SCC 78, [LQ/SC/2008/2497] Harshendra Kumar D. v. Rebartilata Koley and Others, (2011) 3 SCC 351 [LQ/SC/2011/217] and all these aspect has been considered by the Hon‟ble Supreme Court in the case of C.P.Subhash v. Inspector of Police, Chennai and Others, (2013) 11 SCC 559 [LQ/SC/2013/106] .

32. As a cumulative effects of the aforesaid facts, reasons and analysis and considering that only the FIR is under challenge before this Court and except in three cases, the cognizance order has not been brought on record, the Court finds that this is not a case of exercising power under 482 Cr.P.C.

33. It is further well settled that even if a case arising out of a special statute, if the case is made out, IPC sections, however, that can be a subject matter of trial and the argument of Mr. Sidharth Roy, the learned arguing counsel herein in view of that judgment of „Kawar Pal Singh v. State of U.P., (2020) 14 SCC 331, [LQ/SC/2019/1927 ;] is not tenable.

34. In view of movement of the two of the accused in Cr.M.P. No. 1902 of 2011 in A.B.A. No.3617 of 2023, wherein they were ready to deposit the amount, it further suggest that this is a disputed question of fact that can be only a subject matter of trial.

35. Accordingly, these petitions are dismissed.

36. Interim orders are vacated.

37. However, the trial will proceed in accordance with law without being prejudiced by this order.

38. I.A. if any also stands dismissed accordingly.