# Ashraf Ali v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 383
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-23
- **Case number:** Application U/S 482 No. 8171 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashraf-ali-v-state-of-u-p-ors-50211
- **Pages:** 7

## Headnote

A. Criminal Law - Electricity Act, 2003 -
Sections 135 & 151 - Theft of electricity -
Discovery of a direct line drawn from the
100 KVA transformer to the low-tension
line - Proviso was inserted to S. 151 vide
Amendment Act No. 26 of 2007 making
offence u/s 135 as an cognizable offence
-
Proceeding
challenged
-
Held,
amendment to Section 151 is clarificatory
in nature and action could be taken on
complaints that were pending before the
Amending Act of 2007 came into force,
treating them to be cognizable cases -
Satyendra Rai's case relied upon. (8 and
9)

B. Interpretation of Statute - Insertion of
new
proviso
to
Section
151
vide
Amendment Act of 2007 - Nature of
amendment - Relevance - Clarificatory
nature
-
Effect
-
Applicability
of
Amendment - Whether have prospective
effect
or
retrospective
-
Held,
the
amendment is clarificatory in nature, and
therefore,
retrospective
-
Amended
provisions brought vide Act No. 26 of 2007
would apply with retrospective effect and
not prospectively. (Para 11 and 12)

Application rejected. (E-1)

List of Cases cited:

## Text

5 All. Ashraf Ali Vs. State of U.P. & Ors
383
post held by her deceased husband which
was a class III post.

13. Let such consideration be done within a
period of six weeks from the date of receipt
of certified copy of this order. Needless to
mention that appointment of the petitioner
on a class IV post in pursuance to the order
dated 07.09.2016 would be subject to the
orders which are passed by the respondent
no. 2 in this regard with a caveat that in
case the respondent no. 2 rejects the claim
of the petitioner she would still continue on
the class IV post on which she has been
appointed.
----------
(2023) 5 ILRA 383
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.03.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Application U/S 482 No. 8171 of 2023

Ashraf Ali ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Umesh Prasad Singh, Sri Satyendra
Narayan Singh

Counsel for the Opposite Parties:
G.A., Sri Baleshwar Chaturvedi, Sri Mata
Prasad

A. Criminal Law - Electricity Act, 2003 -
Sections 135 & 151 - Theft of electricity -
Discovery of a direct line drawn from the
100 KVA transformer to the low-tension
line - Proviso was inserted to S. 151 vide
Amendment Act No. 26 of 2007 making
offence u/s 135 as an cognizable offence
-
Proceeding
challenged
-
Held,
amendment to Section 151 is clarificatory
in nature and action could be taken on
complaints that were pending before the
Amending Act of 2007 came into force,
treating them to be cognizable cases -
Satyendra Rai's case relied upon. (8 and
9)

B. Interpretation of Statute - Insertion of
new
proviso
to
Section
151
vide
Amendment Act of 2007 - Nature of
amendment - Relevance - Clarificatory
nature
-
Effect
-
Applicability
of
Amendment - Whether have prospective
effect
or
retrospective
-
Held,
the
amendment is clarificatory in nature, and
therefore,
retrospective
-
Amended
provisions brought vide Act No. 26 of 2007
would apply with retrospective effect and
not prospectively. (Para 11 and 12)

Application rejected. (E-1)

List of Cases cited:

1. Mustaq alias Mustafa Vs St. of U.P. & ors.;
2006 SCC OnLine All 1430 : (2006) 6 All LJ 257

2. U.O.I.Vs Mustaq @ Mustafa & ors.; (2016) 13
SCC 398

3. Assistant Electrical Engineer Vs Satyendra Rai
& anr.; (2014) 4 SCC 513

4. Vishal Agarwal & anr. Vs Chhatisgarh
Electricity Board & anr.; (2014) 3 SCC 696

(Delivered by Hon'ble J.J. Munir, J.)

1. Heard Mr. Satyendra Narayan
Singh, learned Counsel for the applicant
and Mr. Mata Prasad, Advocate holding
brief of Mr. Baleshwar Chaturvedi, learned
Counsel appearing for respondents nos. 3
and 4 and Mr. D.K. Srivastava, learned
A.G.A. appearing on behalf of the State.

2. This application has been filed,
seeking to quash the proceedings in
Criminal Case No. 142 of 2005, State v.
Ashraf Ali, under Section 135 of the
384 INDIAN LAW REPORTS ALLAHABAD SERIES
Electricity Act, 2003 (''the Act of 2003' for
short), Police Station Khandauli, District
Agra, pending in the Court of the Special
Judge (E.C. Act), Agra.

3. The applicant has been reported to
the Police through a first information report
dated 10.08.2005 by the Junior Engineer,
Enforcement Squad, Power Distribution
Corporation, who, along with the Executive
Engineer and a team of police officers,
acting on an information, went over to the
premises of a certain M/s. Aftab Ice
Factory owned by the applicant Asharaf
Ali. The information, on which the
enforcement team proceeded, was about
theft of electricity by the applicant. A
checking of the premises followed, which
led to the discovery of a direct line drawn
from the 100 KVA transformer to the lowtension line, for the purpose of energizing
the ice factory. The team found an effective
illegally connected load of 74 H.P. and
corresponding theft being committed by the
applicant. The applicant is said to have
moved away, feigning that he would
produce papers. The cable was removed
and taken into custody. The members of the
public, who were offered to stand witness,
declined to do so, citing reasons eschewing
enmity.

4. Learned counsel for the applicant
has argued that the time when the offence
was committed and the crime registered on
the basis of which the impugned charge
sheet has been filed, that is to say, on
10.08.2005, the offence under Section 135
of the Act of 2003 was not a cognizable
offence and only a complaint could be
filed. It is argued by the learned counsel for
the applicant that the applicant had filed
Criminal Misc. Writ Petition No. 10415 of
2005, challenging the FIR that was
registered against him. It was connected to
a bunch of writ petitions, where the
common issue involved was if an FIR
could at all be registered for an offence
punishable under Section 135 of the Act of
2003, the offence being not cognizable as
the Act then stood. The applicant was
granted interim stay of arrest vide order
dated 06.10.2005. The aforesaid writ
petitions came to be heard and decided by a
Division Bench of this Court on 15.09.2006
in Mustaq alias Mustafa v. State of U.P.
and others, 2006 SCC OnLine All 1430 :
(2006) 6 All LJ 257. The following
directions were issued :

42. According to us, out of three
directions the third one is edging over the
others. We cannot dismiss the writ petitions
since under this judicial pronouncement we
have to hold about legality or validity of
declaring theft of electricity non-cognizable
offence. If we quash the proceeding, we
shall arrive at the same result. Moreover,
we are not recommending the police to
arrest
directly
irrespective
of
taking
cognizance by the Court. But if we
postpone
the
arrest
and
allow
the
authorities including police to obtain leave
or permission for investigation from the
Court of competent jurisdiction then the
purpose will be subserved.

43. Lot of submissions are made
about applicability of Rule 12 of the
Electricity Rules, 2005. It is further
submitted that there is no provision of
making such Rule of investigation and
arrest by the police. We have seen the rule
making power under S. 176 of the Act.
Section 176 gives power to the Central
Government to make the rule whereunder
we find that some of the rule are
specifically made without prejudice to the
generality of the rule making power.
Therefore, such power exists even under
the general rule making power. According
5 All. Ashraf Ali Vs. State of U.P. & Ors
385
to us, question is not the making of such
rule but making its effectivity with the true
spirit of the Act. The Act, 2003 provides
certain offences punishable in accordance
with law. One of such offence is theft of
electricity under Section 135 of the Act.
Section 135 of the Act does not preclude
applicability of Cr. P.C. absolutely. Rule 12
of the Rules is speaking directly on the
issue. But according to us, there is a direct
conflict between such rule and Section 151
of the Act. Had it been the case that Section
151 is exercisable, we could have given
thought in respect of the question/s raised
by the petitioners, but now when the Bill
has been presented proposing amendment
of such section by converting noncognizable offence to cognizable offence,
we should not interfere with it. We can
only keep the applicability of both Section
151 of the Act and Rule 12 of the Rules in
abeyance till the amendment actually takes
place. Naturally the question will arise how
the law will take effect? It can take effect
by applying the provision of S. 175 of the
Act. Such section has made the entire
Electricity Act, 2003 as a supplementary
law in addition to and not in derogation to
any other law for the time being in force.
"Derogation" means the act of annulling or
breaking a law, or some part of it as per
Law Lexicon 1997 Edition. Therefore,
when by such Section the Electricity Act,
2003 does not propose to break or annul the
existing law, Cr. P.C. can act as a filler to
meet the need or necessity. Now the
question would be what is the need? The
need is taking cognizance by the Court as
regards non-cognizable offences and giving
an appropriate direction to the police to do
the needful. Section 155 of the Cr. P.C. is
clear to that extent as given hereunder:

"155. Information as to noncognizable cases and investigation of such
cases.-- (1) when information is given to an
officer in charge of a police station of the
commission within the limits of such
station of a non-cognizable offence, he
shall enter or cause to be entered the
substance of the information in a book to
be kept by such officer in such form as the
State Government may prescribe in this
behalf, and refer the informant to the
Magistrate.

(2)
No
police
officer
shall
investigate a non-cognizable case without
the order of a Magistrate having power to
try such case or commit the case for trial.

(3) Any police officer receiving
such order may exercise the same powers
in respect of the investigation (except the
power to arrest without warrant) as an
officer in charge of a police station may
exercise in a cognizable case.

(4) Where a case relates to two or
more offences of which at least one is
cognizable, the case shall be deemed to be
a cognizable case, notwithstanding that the
other offences are non-cognizable.

44. However, from the aforesaid
discussions the following inferences are
drawn:

(a) Theft of electricity is social
crime;

(b)
electricity
is
saleable
commodity per unit but not unsaleable
abstract energy and supply of uninterrupted
electricity to the citizens is essential service
of the State, therefore, theft of electricity
should be treated as cognizable offence;

(c) persons involved in theft of
electricity do not necessarily mean the
illegal user alone but persons adding or
abating the theft either within or outside the
department;

(d) objects and reasons, list of
offences and Sections 135,151 and if
necessary other sections of the Act, 2003
should be harmoniously construed;
386 INDIAN LAW REPORTS ALLAHABAD SERIES

(e) Section 151 and the word
"non-cognizable" under the list of offences
under the Act can be deleted to have more
effective applicability;

(f) by virtue of Section 175 of the
Act, 2003, the Act is supplemental to the
general law, therefor, there is no bar to the
applicability of Cr. P.C.

(g) "Electricity" being item No.
38 of the List III -- concurrent list of the
Seventh Schedule of the Constitution of
India, both Central and State have every
right to form Special Task Force to entrust
the duty at an appropriate circumstance
especially in case of doubt about failure or
connivance of the police with miscreants.

45. With the above inferences
following order is passed hereunder: Both
the existing Section 151 of the Electricity
Act, 2003 and Rule 12 of the Electricity
Rules, 2005 shall be kept in abeyance and
can be made applicable when amendment
of the Electricity Act, 2003 will actually
take effect. The word "cognizance" under
the Rule 12 of the Electricity Rules, 2005
will be read as "action". Since theft of
electricity is declared as social crime and
saleable commodity, there is no bar under
Cr. P.C. to take care of the offences
temporarily till its amendment by virtue of
Section
175 of
the
Act.
Necessary
applications
can
be
made
by
the
appropriate authority and/or by the police
to the Court of competent jurisdiction to
obtain
leave
and/or
permission
for
necessary investigation of the individual
cases.
After
obtaining
such
leave/permission there will be no bar for
them to investigate and/or arrest an
offender or offenders. The arrest of the
petitioners is stayed for a period of one
month or till after order of the Court of
competent jurisdiction to investigate the
matter, whichever is earlier.

46. Thus, the writ petition stands
disposed of. No order is passed as to costs."

5. It is argued by the learned counsel
for the applicant that the Police submitted a
charge-sheet
and
the
Special
Judge
unmindful of the directions issued by the
Division Bench, took cognizance and
issued process. Therefore, the orders
issuing process in this case are in violation
of the directions of the Division Bench of
this
Court,
where
without
seeking
permission of the competent Court, the
Police had filed a charge-sheet against the
applicant.

6. The aforesaid plea has been
contested by Mr. Mata Prasad, Advocate
holding brief of Mr. Baleshwar Chaturvedi,
learned counsel for respondents nos. 3 and
4 and Mr. D.K. Srivastava, learned A.G.A.
appearing on behalf of the State.

7. It is argued that in view of the
subsequent amendment of the provisions of
Section 151 of the Act of 2003 vide Act
No. 26 of 2007 and the decision of the
Supreme Court in Union of India vs.
Mustaq alias Mustafa and others, (2016)
13 SCC 398 the said ground is no longer
tenable.

8. The Act of 2003 was amended vide
Act No. 26 of 2007 inserting the first
proviso to Section 151 of the Act of 2003.
By the said amendment, the offence under
Section 135 was made a cognizable offence
of which the Court could take cognizance
upon a Police report filed under Section
173 (2) of the Code of Criminal Procedure,
1973. In Assistant Electrical Engineer v.
Satyendra Rai and another, (2014) 4
SCC 513, the Supreme Court reversed a
judgment of the Patna High Court, holding
that the Court could not take cognizance of
5 All. Ashraf Ali Vs. State of U.P. & Ors
387
an offence of electricity theft on a Police
report, but on a complaint alone in writing
by the appropriate Government. The said
view was held untenable. In the Patna case,
the offence had been committed on
24.01.2007 and the Amending Act No. 26
of 2007 making the offence cognizable
came
into
force
with
effect
from
15.06.2007. Therefore, it was argued before
their Lordships of the Supreme Court in
Satyendra Rai (supra) that the amendment
made vide Act No. 26 of 2007 would not
apply to the writ petitioners' case. There,
the offence was committed prior to
insertion of the first proviso to Section 151
of the Act of 2003 by the Amending Act of
2007.
The
aforesaid
contention
was
repelled by the Supreme Court holding:

8. Mr Mohit Kumar Shah, learned
counsel appearing for the appellant invites
our attention to the present Section 151 of
the Act and more particularly to the proviso
which has been added by way of an
amendment. This proviso came by way of
Act 26 of 2007 and reads as under:

"Provided that the court may also
take cognizance of an offence punishable
under this Act upon a report of a police
officer filed under Section 173 of the Code
of Criminal Procedure, 1973 (2 of 1974):

Provided further that a Special
Court constituted under Section 153 shall
be competent to take cognizance of an
offence
without
the
accused
being
committed to it for trial."

Therefore, ordinarily, there is no
difficulty now in the way of the police to
investigate as also to prosecute the accused
if it is found that the accused has
committed the offence. However, this
proviso seems to have come only w.e.f. 156-2007, whereas the offence complained of
in the present case is stated to have taken
place on 24-1-2007. Therefore, it is argued
by the learned counsel for the respondent
that the proviso could apply only if the
offence is committed and reported after 156-2007.

9. We, however, do not agree as
the learned counsel appearing for the
appellant has also pointed out and invited
our attention to the Statement of Objects
and Reasons of the Act by which the
amendment has come and further by which
the proviso is added. Para 4 of the
Statement of Objects and Reasons reads as
under:

"4.
As
per
the
provisions
contained in Section 151 of the Act, the
offences relating to theft of electricity,
electric lines and interference with metres
are cognizable offences. Concerns have
been expressed that the present formulation
of Section 151 stands as a barrier to
investigation of these cognizable offences
by the police. It is proposed to amend
Section 151 so as to clarify the position
that the police would be able to investigate
the cognizable offences under the Act. To
expedite the trial before the Special Courts,
it is also proposed to provide that a Special
Court
shall
be
competent
to
take
cognizance of an offence without the
accused being committed to it for trial."

(emphasis supplied)

Therefore,
considering
the
language of Para 4 of the Statement of
Objects and Reasons, it is clear that the
amendment brought in is clarificatory in
nature and as such it would take into its
ambit even the pending matters and in that
sense
it
would
be
a
retrospective
amendment.

10. There is one more reason why
the High Court's order [Satyendra Rai v.
State of Bihar, Criminal Misc. No. 19178 of
2007, order dated 28-5-2009 (Pat)] can be
faulted. The High Court has clearly ignored
388 INDIAN LAW REPORTS ALLAHABAD SERIES
the First Schedule of CrPC and more
particularly the second part thereof which
is under the head "Classification of
offences against other laws". The second
entry reads as follows:

"If punishable with imprisonment
for three years and upwards but not more
than seven years, then such offences are
held to be cognizable, non-bailable and
triable by the Court of the Magistrate of the
First Class."

11. Therefore, the High Court
ought to have considered this provision
which makes the first information report
acceptable by the police in the sense that
the police could investigate into the matter
and if found guilty could have also filed a
report under Section 173 CrPC before the
court on which the court could have taken
the cognizance of the offence."

9. Later on, the issue again came up
before the Supreme Court in an appeal
from the judgment of the High Court of
Chhatisgarh in Vishal Agarwal and
another
vs.
Chhatisgarh
Electricity
Board and another, (2014) 3 SCC 696.
Following the decision in Satyendra Rai,
it was held in Vishal Agarwal (supra) by
the Supreme Court that the amendment to
Section 151 is clarificatory in nature and
action could be taken on complaints that
were pending before the Amending Act of
2007 came into force, treating them to be
cognizable cases. In paragraph no. 17 of the
report in Vishal Agarwal, it was held :

17. In view of the aforesaid
judgment of this Court in Satyendra Rai
case
[Asstt.
Electrical
Engineer
v.
Satyendra Rai, (2014) 4 SCC 513 : (2012)
1 PLJR 476 (SC)], conclusively holding
that
amendment
to
Section
151
is
clarificatory in nature and further that
notwithstanding the provisions of Section
151 of the Act, an FIR could be filed with
the police, the matter stands clinched in
favour of the Board. However, at the same
time we would like to elaborate the view
taken by this Court in the aforesaid
judgment.

10. Thus, by the time, the challenge to
the decision of the Division Bench of this
Court in Mustaq (supra) came up before
the Supreme Court in Mustaq alias
Mustafa (supra), the principle was already
well settled. Accordingly, the directions
protecting the writ petitioners in Mustaq
on the ground that the cases had been
registered at a time when the Amending
Act of 2007 had not yet come into force,
were all vacated by the Supreme Court in
Mustaq alias Mustafa. It was held :

2. The High Court has observed
as follows: (Mustaq case [Mustaq v. State
of U.P., 2006 SCC OnLine All 1430 :
(2006) 6 All LJ 257] , SCC OnLine All
para 43)

"43. ... The 2003 Act provides
certain offences punishable in accordance with
law. One of such offence is theft of electricity
under Section 135 of the Act. Section 135 of the
Act does not preclude applicability of CrPC
absolutely. Rule 12 of the Rules is speaking
directly on the issue. But according to us, there
is a direct conflict between such rule and
Section 151 of the Act. Had it been the case that
Section 151 is exercisable, we could have given
thought in respect of the question(s) raised by
the petitioners, but now when the Bill has
been presented proposing amendment of
such section by converting non-cognizable
offence to cognizable offence, we should not
interfere with it. We can only keep the
applicability of both Section 151 of the Act
and Rule 12 of the Rules in abeyance till the
amendment actually takes place."
5 All. Soni Devi Vs. State of U.P. & Ors.
389

 (emphasis supplied)

3. The learned Additional Solicitor
General has pointed out a decision of this Court
in Electrical Engineer v. Satyendra Rai
[Electrical Engineer v. Satyendra Rai, (2014) 4
SCC 513] , wherein this Court has specifically
held in para 9 as follows: (SCC p. 516)

"9. ... Therefore, considering the
language of Para 4 of the Statement of Objects
and Reasons, it is clear that the amendment
brought in is clarificatory in nature and as such,
it would take into its ambit even the pending
matters and in that sense, it would be a
retrospective amendment."

To that extent, the other decision of
this Court in Vishal Agrawal v. Chhattisgarh
SEB [Vishal Agrawal v. Chhattisgarh SEB,
(2014) 3 SCC 696 : (2014) 4 SCC (Cri) 674]
also plays the same role.

4. In view of the above-cited
decisions of this Court, wherein it has been
specifically stated that it is clear from the
language of Para 4 of the Statement of Objects
and Reasons that the amendment brought in is
clarificatory in nature and as such it would be
a retrospective amendment, we hold that the
impugned order [Mustaq v. State of U.P., 2006
SCC OnLine All 1430 : (2006) 6 All LJ 257]
passed by the High Court cannot be given
effect to and is hereby set aside and direct that
the orders passed by this Court, which we
have cited hereinabove, be followed.

11. In the aforesaid conspectus of facts,
it is no longer open to the learned counsel for
the applicant to argue that the learned Special
Judge could not take cognizance of the case on
the basis of a Police report filed against the
applicant. The judgment of the Division Bench
in Mustaq would not at all come to the
applicant's rescue. The said judgment has been
set aside by the Supreme Court in Mustaq
alias Mustafa. Also, the Supreme Court has
held the amendment makes the offence
punishable under Section 135 of the Act of
2003 cognizable by virtue of the amendment
to Section 151 of the Act of 2003 and has done
so retrospectively. The reasoning there is that
the amendment is clarificatory, and therefore,
retrospective.

12. Be that as it may, the law has now been
finally settled that in respect of an FIR or
complaint pending prior to the date of the
amendment, the amended provisions brought
vide Act No. 26 of 2007 would apply with
retrospective effect and not prospectively. Here,
the amendment came into force with effect from
15.06.2007 and the offence was committed on
10.08.2005, but, that would not be a ground, as
Mr. S.N. Singh wants, to quash the impugned
proceedings, in view of the consistent holding of
the Supreme Court that the amendment is
retrospective, making the offence under Section
135 of the Act of 2003 cognizable.

13. No other point was pressed.

14. This application stands rejected.

15. It goes without saying that this order
shall not adversely affect the applicant's right,
if so advised, to move for discharge at the
appropriate stage.
----------
(2023) 5 ILRA 389
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.04.2022

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Application U/S 482. No. 12864 of 2021
With
Application U/S 482 No. 27758 of 2021
And Other Connected Cases

Soni Devi ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties