# Hari Nandan v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 41
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-09-29
- **Case number:** Criminal Misc. Writ Petition No. 22824 of 2014
- **Bench:** Rakesh Tiwari, Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-nandan-v-state-of-u-p-ors-43091
- **Pages:** 8

## Headnote

Constitution of India, Art. 226-Quashing
FIR-offence
under
Section
138-B
of
Electricity Act-on allegations even on
disconnection-petitioner found consuming
electricity power-on ground of provision of
Section 41-A of Cr.P.C.-punishment being
lesser that 7 years-arrest can not be
affected in routine manner as well as as
per law laid down by Apex Court in Arnesh
Kumar case-held-under
Section 151-A
police having power to investigate-having
special provision under Section 153 and
154 of Electricity Act-from perusal of FIR
cognizable
offence
made
out-no
interference call far-the rulings relied by
petitioner-not
applicable-petition
dismissed
on
ground
of
remedy
to
approach before special Court constituted
under special Act-petition dismissed.
Held: Para-22, 23 &24

## Text

1 All]. Hari Nandan Vs. State of U.P. & Ors.
41
In the circumstances, we find that the
impugned order is based on no material. The
writ petition is allowed. The impugned order
dated 22.8.2005 is quashed."
13. The decision in Smt. Alka Rani's
case applies to the facts of the case in hand,
as in this case also allegations are vague and
specific instances and material sought to be
read in support of the allegations against the
petitioner have not been mentioned. If no
material is mentioned in the suspension
order then substituting the material in the
counter-affidavit would be of no help to the
respondents. We further find that along with
the suspension order no show-cause notice
had been issued to the petitioner directing
him to show-cause as to whey his fair price
shop
licences/agreement
may
not
be
cancelled. The impugned suspension order is
vitiated on this ground alone being in
violation of mandatory requirements of G.O.
Dated 29.7.2004.
14. For the aforesaid reasons, we are
in agreement with learned Counsel for the
petitioner that the impugned suspension
order is vague and on the basis of which
petitioner's fair price shop licence/agreement
could not be cancelled and the impugned
order deserves to be quashed.
15. In the result, this writ petition
succeeds and is allowed. The impugned
suspension order dated 25.5.2005 passed
by respondent No. 2, Annexure-1 to the
writ petition, is quashed"
12. In Abu Baker Vs. State of U.P.
and others 2010 (6) ADJ 339, this court
had held as follows: -
"There is no material on record
indicating either the petitioner was given
any opportunity to cross-examine the
witness who had deposed against him or
the copies of the statements of witnesses
so recorded were furnished to him. Thus
what follows from the above discussion is that
the petitioner has been penalised on the basis
of the statements of Antodaya and BPL card
holders recorded behind his back although
neither the copies of the statements of the
aforesaid witnesses were furnished to the
petitioner nor he was given any opportunity to
cross-examine the witness so examined."
13. Applying the ratio of the law
laid down in the aforesaid case, the court
finds that the inquiry proceedings were
conducted in flagrant defiance of the
Government Order dated 29.7.2004 and
the law laid down by this Court and
therefore, the case of the petitioner was
severely prejudiced thereby making the
impugned orders dated 29.09.2012 and
16.01.2013 unsustainable in law.
14. The writ petition succeeds and is
hereby allowed. The orders impugned
dated 29.09.2012 and 16.01.2013 are
hereby quashed. However, it shall be open
for the respondents to pass fresh orders in
the light of the observations made
hereinabove and in accordance with law
within a period of two months from the
date of the production of the certified
copy of this order. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.12.2014
BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Criminal Misc. Writ Petition No. 22824 of 2014
Hari Nandan
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Moti Lal, Smt. Meera
42
 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
A.G.A., Sri Shivam Yadav
Constitution of India, Art. 226-Quashing
FIR-offence
under
Section
138-B
of
Electricity Act-on allegations even on
disconnection-petitioner found consuming
electricity power-on ground of provision of
Section 41-A of Cr.P.C.-punishment being
lesser that 7 years-arrest can not be
affected in routine manner as well as as
per law laid down by Apex Court in Arnesh
Kumar case-held-under
Section 151-A
police having power to investigate-having
special provision under Section 153 and
154 of Electricity Act-from perusal of FIR
cognizable
offence
made
out-no
interference call far-the rulings relied by
petitioner-not
applicable-petition
dismissed
on
ground
of
remedy
to
approach before special Court constituted
under special Act-petition dismissed.
Held: Para-22, 23 &24
22. A perusal of the first information
report has been lodged against the
petitioner shows that cognizable offence
is made out against the petitioner.
Therefore, prayer (I) of the writ petition
seeking relief for quashing of the FIR
cannot be granted and as a consequence
the petitioner is not entitled for relief
no.(II) for stay of arrest.
23. Even otherwise proceeding under
Section 135 of the Act had been taken
against the petitioner which relates to
theft of electricity, second proviso to
Section 135 (1)(A) provides further that
such officer of the licensee or supplier,
as the case may be, shall lodge a
complaint in writing relating to the
commission of such offence in police
station having jurisdiction within twenty
four
hour
from
the
time
of
such
disconnect:
24. In the circumstances, we are not
inclined to interfere in the matter and
the petitioner has an efficacious remedy
by moving the Special Court constituted
under the Special Act which is the
Electricity Act and the matter is specified
therein.
Case Law discussed:
2014 (8) SCC 273; Laws (All)-2011-9-22.
(Delivered by Hon'ble Rakesh Tiwari, J.)
1. Heard learned counsel for the
parties and perused the record.
2.
The petitioner has challenged the
validity, propriety and legality of the first
information report in case crime No.225 of
2014, under Section 138-B of Electricity
Act registered at P.S. Binawar, District
Budaun, whereas it has been alleged that a
team of Assistant Engineer along with
others visited the villages Sadullahpur
Kitara, Chandaura, Bichharayya, etc. under
the Police Station Binawar on 19.6.2014.
The enforcement party found that 14
persons of aforesaid village had connected
their electricity connections after the
electricity
department
had
earlier
disconnected their electricity connections.
As regard the petitioner is concerned, it is
stated in the first information report thus:
" blds ckn xzke fcNj;k igqWpsA v'kksd dqekj
,l0@vks0 jkeiky cqd la0 1123@dus0 la0
024282 cdk;k 51540 cdk;k gfjuUnu ,l0@vks0
xaxk flg cad la0 1123@dus0 la0 050739 cdk;k
47752 cdk;k ?kjsyw eksguyky ,0@vks0 [;kyh jke
cqd la0 1120@dus0 la0 051942 cdk;k 36145
cdk;k ij dVk dusD'ku pyrk gqvk ik;k x;kA "
3. The petitioner was proceeded
against under Section 148-B of the
Electricity Act for the offence committed
by him, which is punishable up to 3 years,
is cognizable as non-bailable as provided
under the Electricity Act.
4. The contention of the learned
counsel for the petitioner is that Section
1 All]. Hari Nandan Vs. State of U.P. & Ors.
43
151-A of the aforesaid Act, gives only
power of investigation to the concerned
police station but provisions of Chapter
XII of Cr.P.C. does not provide for any
power of arrest yet the police of P.S.
Binawar are making attempt to arrest the
petitioner, which is without jurisdiction.
5. It is further contended that
Section 41-A Cr.P.C provides that arrest
of the accused person for offence
punishable with imprisonment of 7 years
or less are not to be made in a routine
manner and arrest can be effected only
after issuance of notice and in default of
conditions
mentioned
therein.
The
contention of the learned counsel for the
petitioner is that no inspection, search and
seizure of any domestic places or
domestic premises shall be carried out
between sunset and sunrise except in the
presence of an adult male member
occupying such premises.
6. In support of his contention,
counsel for the petitioner has placed
reliance upon the decision rendered in
Arnesh Kumar Vs. State of Bihar and
another, 2014 (8) SCC 273, wherein the
Apex Court has observed that directions
issued therein shall apply in all such cases
where
offence
is
punishable
with
imprisonment for a term which may be
less than seven years or which may
extend to seven years whether with or
without fine- Police officers shall not
arrest the accused unnecessarily and
Magistrate shall not authorise detention
casually and mechanically- Failure to
comply with these directions, shall apart
from rendering police officers concerned
liable for departmental action, also make
them liable to be punished for contempt
of court- Authorising detention without
recording reasons by Judicial Magistrate
concerned shall be liable for departmental
action by appropriate High Court- Copy
of judgment to be forwarded to Chief
Secretaries as also DGs of Police of all
States, Union Territories and Registrar
General of all High Courts for ensuring
compliance therewith- Police- ArrestPenal Code, 1860- S.498A- Constitution
of India, Arts.21 and 22(2).
7. The petitioner in this regard has
further placed reliance upon the decision
rendered in Shaukin Vs. State of Uttar
Pradesh, Laws (All)-2011-9-22.
8. From the extract quoted by us in the
body of judgment, it is clear that electricity
dues were not paid by Ashok Kumar S/o
Ram Pal, Harinandan S/o Ganga Singh,
Gharelu Mohanlal S/o Khyali Ram and their
energy supply line was earlier disconnected
but at the rime of raid their electricity
connection found to be re-connected while
amounted to theft of electricity.
9. As regard the judgment cited by the
learned counsel for the petitioner in Arnesh
Kumar (supra) is concerned that judgment
has overlooked the context in which has been
rendered. In that case Arnesh Kumar was the
Apex Court was considering the power to
police, to arrest an accused, without warrant,
under Section 498-A read with Section 4 of
Dowry Prohibition Act, 1961. Therefore the
Court in the facts and circumstances of the
case held that due to the rampant misuse of
these provisions, it would be prudent and
wise for a police officer not to make any
arrest
without some investigation for
recovery to a reasonable satisfaction, as to
genuineness of the allegations.
10. As stated earlier, this is not a
case under the Dowry Prohibition Act or
Section 498-A of the Act. It rather is a
44
 INDIAN LAW REPORTS ALLAHABAD SERIES
case under the Electricity Act, 2003,
where the checking party under the
Assistant Engineer of the department had
visited the village at the spot and found
theft of electricity being committed by
reconnecting the power supply by the
consumers without payment of dues.
11.
Shri Shubham Yadav, learned
counsel for the respondents submits that
compounding for offence under section 152
(1) is permitted under Section 152(4) of the
Electricity Act. It only once to a person or
consumer. He further states that petitioner had
also availed this opportunity, and therefore, he
cannot now claim compounding again for a
second time under the provisions of the Act.
12. After hearing counsel for the
parties it appears that admittedly, the
electricity supply of the petitioner had
been
disconnected
earlier
and
on
inspection by the it team was found to be
re-connected illegally by the petitioner
and the impugned FIR against him was
lodged. The petitioner has prayed for the
following reliefs;
I)issue an order, direction or writ in
the nature of certiorari, call for record and
quash the FIR at case crime no.225/2014
u/s 138-B Electricity Act, P.S. Binawar,
Budaun dated 19.6.2014 (Annexure '1').
II) issue an order, direction or writ in
the nature of mandamus and direct the
respondents not to arrest the petitioner in
F.I.R at case crime no.225/2014 u/s 138-B
Electricity Act, P.S. Binawar, Budaun
dated 19.6.2014 (Annexure '1').
III) issue any other writ, order,
direction, which this Hon'ble Court may
deem just and expedient in the interest of
justice.
IV) award cost of this petition in
favour of the petitioner.
13. From the F.I.R, it is apparent
that
search/inspection
operation
was
initiated at 11.05 A.M on 19.6.2014 and
after search and investigation about 18
connections in three villages as mentioned
in the FIR, was lodged at 5 p.m. The first
information report has been lodged in the
mid of June, 2014. Therefore, search was
not carried out after sunset or before
sunrise.
14. On examining of Section 138 of
the Electricity Act, it is apparent that the
appellant had violated the provision of the
aforesaid
Act
read
with
the
first
information report. Under Section 147 of
the Electricity Act, 2003, the penalties
imposed under this Act, shall be in
addition to, and not in derogation of, any
liability in respect of payment of
compensation or, in the case of a licence,
the revocation of his licence which the
offender may have incurred. He may also
note that violation of provision under
Section 151 is cognizable offence.
15. The police under Section 151A
has power to investigate. An offence
punishable under the Act and is vested all
the power under Chapter XII of the Code
of Criminal Procedure, 1973.
16. Further more Section 151-B not
provides this:
"151-B. Certain offences cognizable
and non-bailable- Notwithstanding anything
contained in the Code of Criminal
Procedure, 1973, an offence punishable
under sections 135 to 140 or section 150
shall be cognizable and non-bailable."
17. Compounding of offences which
is provided under Section 152(4) which
read thus:
1 All]. Hari Nandan Vs. State of U.P. & Ors.
45
"152. Compounding of offences.-
(4) The compounding of an offence
under sub-section (1) shall be allowed
only once for any person or consumer."
18. In so far as the two judgments
cited by the learned counsel for the
petitioner that the Electricity Act and its
provision will prevail Special Law except
they are not in derogation to the provision
of Criminal Procedure. We may also note
that Sections 153 and 154 the Electricity
Act, which provides Special Courts which
read thus:
"153.
Constitution
of
Special
Courts.- (1) The State Government may,
for the purposes of providing speedy trial
of offences referred to in [ sections 135 to
140] and section 150], by notification in
the Official Gazette, constitute as many
Special Courts as may be necessary for
such area or areas, as may be specified in
the notification.
(2) A Special Court shall consist of a
single Judge who shall be appointed by
the
State
Government
with
the
concurrence of the High Court.
(3) A person shall not be qualified
for appointment as a Judge of a Special
Court unless he was, immediately before
such appointment, an Additional District
and Sessions Judge.
(4) Where the office of the Judge of a
Special Court is vacant or such Judge is
absent from the ordinary place of sitting
of
such
Special
Court,
or
he
is
incapacitated by illness or otherwise for
the performance of his duties, any urgent
business in the Special Court shall be
disposed of-
(a) by a Judge, if any, exercising
jurisdiction in the Special Court;
(b) where there is no such other
Judge available, in accordance with the
direction of District and Sessions Judge
having jurisdiction over the ordinary
place of sitting of Special Court, as
notified under sub-section (1).
154. Procedure and power of Special
Court.- (1) Notwithstanding anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974), every
offence punishable under ( sections 135 to
140 and section 150] shall be triable only
by the Special Court within whose
jurisdiction
such
offence
has
been
committed.
(2) Where it appears to any court in
the course of any inquiry or trial that an
offence punishable under (section 135 to
140 and section 150) in respect of any
offence that the case is one which is
triable by a Special Court constituted
under this Act for the area in which such
case has arisen, it shall transfer such case
to such Special Court, and thereupon such
case shall be tried and disposed of by such
Special Court in accordance with the
provisions of this Act:
Provided that it shall be lawful for
such Special Court to act on the evidence,
if any, recorded by any court in the case
of presence of the accused before the
transfer of the case to any Special Court:
Provided further that if such Special
Court
is
of
opinion
that
further
examination, cross-examination and reexamination of any of the witnesses
whose
evidence
has
already
been
recorded, is required in the interest of
justice, it may re-summon any such
witness
and
after
such
further
examination, cross-examination or reexamination, if any, as it may permit, the
witness shall be discharged.
(3)
The
Special
Court
may,
notwithstanding anything contained in
sub-section (1) of section 260 or section
262 of the Code of Criminal Procedure,
46
 INDIAN LAW REPORTS ALLAHABAD SERIES
1973 (2 of 1974), try the offence referred
to in [ sections 135 to 140 and section
150] in a summary way in accordance
with the procedure prescribed in the said
Code and the provisions of section 263 to
265 of the said Code shall, so far as may
be, apply to such trial:
Provided that where in the course of
a summary trial under this sub-section, it
appears to the Special Court that the
nature of the case is such that it is
undesirable to try such case in summary
way, the Special Court shall recall any
witness who may have been examined
and proceed to re-hear the case in the
manner provided by the provisions of the
said Code for the trial of such offence:
Provided further that in the case of
any conviction in a summary trial under
this section, it shall be lawful for a
Special Court to pass a sentence of
imprisonment for a term not exceeding
five years.
(4)A Special Court may, with a view
to obtaining the evidence of any person
supposed to have been directly or
indirectly concerned in or privy to, any
offence tender pardon to such person on
condition of his making a full and true
disclosure of the circumstances within his
knowledge relating to the offence and to
every other person concerned whether as
principal or abettor in the commission
thereof, and any pardon so tendered shall,
for the purposes of section 308 of the
Code of Criminal Procedure, 1973(2 of
1974), be deemed to have been tendered
under Section 307 thereof.
(5)The
[
Special
Court
shall]
determine the civil liability against a
consumer or a person in terms of money
for theft of energy which shall not be less
than an amount equivalent to two times of
the tariff rate applicable for a period of
twelve months proceeding the date of
detection of theft of energy or the exact
period of theft if determined whichever is
less and the amount of civil liability so
determined shall be recovered as if it were
a decree of civil court.
(6)In case the civil liability so
determined finally by the Special Court is
less than the amount deposited by the
consumer or the person, the excess
amount so deposited by the consumer or
the person, to the Board or licence or the
concerned person, as the case may be,
shall be refunded by the Board or licensee
or the
concerned person, as the case may be,
within a fortnight from the date of
communication of the order of the Special
Court together with interest at the
prevailing Reserve Bank of India prime
lending rate for the period from the date
of such deposit till the date of payment.
Explanation.- For the purposes of
this section, "civil liability" means loss or
damage incurred by the Board or licensee
or the concerned person, as the case may
be, due to the commission of an offence
referred to in [ section 135 to 140 and
section 150]"
19. With a notification constituted
Special Court was notified by the Uttar
Pradesh Shashan No.1232/VII-NYAYA2- 204-206/81 Dated: Lucknow dated
August 31,2004, which read thus:
" In exercise of the powers under
section 153 of the Electricity Act, 2003
(Act no.36 of 2003) the Governor is
pleased to constitute all the Fourth Senior
most courts of Additional District and
Sessions Judge of the district and where
there is no such court, the court of the
Senior
most
Additional
District
&
Sessions Judges of the district, as the
Special Courts under sub-section (1) of
1 All]. Hari Nandan Vs. State of U.P. & Ors.
47
the said section and to appoint with the
concurrence of the Chief Justice of the
High Court of Judicature at Allahabad, all
the presiding officers of the said courts as
the Judges thereof for the purposes of
providing speedy trial of offence referred
to under section 135 to 141 of the said
Act within their respective jurisdictions."
20. The Registrar General, High
Court of Judicature at Allahabad had
circulated notification vide C.L. No.29/
Main-B/Admin.(A-3) dated 21.9.2004 had
conferred the powers of Special Courts to
one of the existing Sessions Courts to try
cases falling under the Electricity Act,
2003. The letter read thus:
" From,
O.N. Khandelwal, H.J.S.,
Registrar General,
High
Court
of
Judicature
at
Allahabad.
To,
All the District & Sessions Judges,
Subordinate to the High Court of
Judicature at Allahabad.
C.L. No. 29/ Main-B/Admin.(A-3)
Dated: Alld: 21.9.2004.
Subject:- Conferment of powers of
Special Courts to one of the existing
Sessions Courts to try cases falling under
the Electricity Act-2003.
Sir,
On the above subject, I am sending
herewith
a
copy
of
Government
Notification No.1232/VII-Nyaya-2-2004206/81, dated August 31, 2004, regarding
constitution of IV Seniormost court of
Additional District & Sessions Judge in
each district as Special Court under
section 153 of the U.P. Electricity Act2003 and where such Additional District
and Sessions Judge is not available, the
Seniormost
Additional
District
&
Sessions Judge of the district as Special
Court under the aforesaid Act.
I am, therefore, to request you kindly
to ensure compliance of the aforesaid
Government Notification.
Enclosure:-
Yours faithfully,
As above.
Registrar General"
21. From the above, it is crystal
clear that Special Courts have also been
constituted and have been conferred
power to try such cases as the instant case
falling under the Electricity Act, 2003,
which are functioning.
22. A perusal of the first information
report has been lodged against the
petitioner shows that cognizable offence
is made out against the petitioner.
Therefore, prayer (I) of the writ petition
seeking relief for quashing of the FIR
cannot be granted and as a consequence
the petitioner is not entitled for relief
no.(II) for stay of arrest.
23. Even otherwise proceeding
under Section 135 of the Act had been
taken against the petitioner which relates
to theft of electricity, second proviso to
Section 135 (1)(A) provides further that
such officer of the licensee or supplier, as
the case may be, shall lodge a complaint
in writing relating to the commission of
such offence in police station having
jurisdiction within twenty four hour from
the time of such disconnect:
24. In the circumstances, we are not
inclined to interfere in the matter and the
petitioner has an efficacious remedy by
moving the Special Court constituted
under the Special Act which is the
48
 INDIAN LAW REPORTS ALLAHABAD SERIES
Electricity Act and the matter is specified
therein.
25. For the aforesaid reason, petition
is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2014
BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
Civil Misc. Writ Petition No. 26980 of 2012
Munna Lal Sharma
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Pulak Ganguly, Sri Arun Kumar Singh-I
Counsel for the Respondents:
C.S.C., Sri A.K. Lal, Sri Sujeet Kumar Rai
Persons
with
disabilities(Equal
opportunities, Protection of Rights and full
participation)
Act
1995-Section-47petitioner working as cadre secretary-due
to loss of vision of both eyes (optic
atrophy) proceeded on medical leave-of 18
months, duly sanctioned-denial of salary in
spite of direction of Court-rejecting the
claim-decided to compulsory retire-held
amount to termination-just contrary, to
mandate of overriding provisions of Act
1995-direction issued to pay entire arrears
of salary with all service benefits to pay
9% interest thereon till actual payment
made.
Held: Para-15
In view of this submission, while setting
aside the order dated 8.11.2012 retiring
the
petitioner
from
service,
the
respondents are directed to pay the
petitioner entire arrears of salary till
8.11.2012 along with all services benefit
admissible to the petitioner with interest
@ 9% till the date of actual payment. It
is directed that computation be done and
payment shall be made to the petitioner
within a period of two months from the
date a certified copy of this order is
produced.
Case Law discussed:
(2003) 4 SCC 524; 2010 (8) ADJ 280; (2004) 6
SCC 708.
(Delivered by Hon'ble Mrs. Sunita Agarwal, J.)
1. Heard Shri Arun Kumar Singh,
learned counsel for the petitioner, learned
Standing Counsel for respondent Nos. 1
to 3,Shri Sujeet Kumar Rai, learned
counsel respondent No.4 and Shri A.K.
Lal learned counsel for respondent No.5.
2. While working as Secretary of the
Cooperative Society Bijnor, namely,
Kisan Sewa Sahkari Samiti, Saidpur,
District Bijnor, petitioner has suffered
visual impairment and lost his eyesight
resultantly he has acquired complete
visual disability i.e. blindness. The
petitioner started losing his eyesight in the
month of September, 2006 and had
become
100%
visually
disabled
in
February, 2009. He has applied for
medical leave which was sanctioned for
the period from 15.1.2007 to 16.1.2008
and 16.1.2008 to 30.6.2008 by the
Secretary/General
Manager,
District
Cooperative bank, Bijnor. His salary has
not
been
paid,
therefore,
he
has
approached this Court by filing writ
petition No. 49740 of 2010 which was
disposed on 19.8.2010. The order passed
by this Court is as under:-
"Learned
Standing
Counsel
represents respondent Nos.1 to 4.
Issue notice to respondent No.5.
The petitioner was serving as Cadre
Secretary,
Shadipur
Kisan
Sewa