# Udaiveer v. State of U.P. and others

- **Citation:** (2007) 2 ILRA 425
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-02-21
- **Case number:** Criminal Misc. Writ Petition No. 15622 of 2006
- **Bench:** Amar Saran, R.N. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udaiveer-v-state-of-u-p-and-others-40933
- **Pages:** 6

## Headnote

Sri W.H. Khan
Sri Rajendra Kumar Mishra
Sri V.S. Mishra
Sri A.K. Sand
Sri Ranjeet Saxena
A.G.A.

Constitution of India, Art. 226-Petition
for Quashing F.I.R.-stay of arrest-offence
under section 135 of Electricity Act,
2003-earliar High Court disposed of all
petitions with direction to Police or other
concerned officer to approach before
Magistrate
seeking
direction
for
investigation and warrant of arrest-court
expressed
its
great
concern
with
shocking state of affairs that-no action
taken in furtherance of direction of
Court-electricity
theft
being
noncognizable offence-such negligence on
the part of power corporation resulted
irreparable loss of revenue and immense
suffering to honest consumers direction
issued to approach before the Magistrate
under section 155 (2) of the Codesubmit the progress report in the next
date-the C.M.D. Power Corporation shall
personally appear before the Court.

Held: Para 13

We, therefore think it imperative to now
issue a mandamus directing that that
immediate measures be taken in the
present cases as well as in all other
cases relating to Section 135 of the
Electricity
Act
and
other
related
provisions, in which arrest were earlier
stayed or are sought to be stayed, to
immediately file applications before the
Court concerned for investigations and
arrests of the accused under section
155(2) P.C within three weeks. The
compliance report
in
all the cases
mentioning details of all the cases
relating to power thefts and the dates
when the applications have been moved
426 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
before
the
Courts
concerned,
the
progress
of
investigations
including
arrests shall be submitted to this Court
on or before 19.3.2007. The Court will
take an extremely serious view in case of
any non-compliance with this order and
may be constrained to summon the
Managing
Director,
(U.P.
Power
Corporation Limited) Lucknow, or the
DIG
(Public
Grievances),
DGP
Headquarters, Lucknow and hold them
answerable if it finds any laxity in
compliance with this order.

## Text

2 All] Udaiveer V. State of U.P. and others
425
the bail prayer of the applicant can be
considered even by one member. Thus the
prayer of the applicant that CJM be
directed to consider the bail of the
applicant cannot be allowed against the
provisions of the Act. If the applicant
wants he can move his bail application
before the Board who is under the legal
duty to consider his prayer for bail.

11. In view of the proceeding
analysis of law and of facts, this
application lacks merit and deserves to be
dismissed and is here by dismissed.
Application dismissed
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2007

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE R.N. MISRA, J.

Criminal Misc. Writ Petition No. 15622 of
2006
with
Criminal Misc. Writ Petition No. 15687 of
2006, Criminal Misc. Writ Petition No.
1190 of 2007, Criminal Misc. Writ Petition
No. 9510 of 2006, Criminal Misc. Writ
Petition No. 1974 of 2007, Criminal Misc.
Writ Petition No. 14711 of 2006, Criminal
Misc. Writ Petition No. 15624 of 2006,
Criminal Misc. Writ Petition No. 13109 of
2006, Criminal Misc. Writ Petition No.
15721 of 2006, Criminal Misc. Writ
Petition No. 10358 of 2006, Criminal Misc.
Writ Petition No. 14524 of 2006, Criminal
Misc. Writ Petition No. 14974 of 2006,
Criminal Misc. Writ Petition No. 9903 of
2006

Udaiveer

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Rahul Chaturvedi

Counsel for the Respondents:
Sri W.H. Khan
Sri Rajendra Kumar Mishra
Sri V.S. Mishra
Sri A.K. Sand
Sri Ranjeet Saxena
A.G.A.

Constitution of India, Art. 226-Petition
for Quashing F.I.R.-stay of arrest-offence
under section 135 of Electricity Act,
2003-earliar High Court disposed of all
petitions with direction to Police or other
concerned officer to approach before
Magistrate
seeking
direction
for
investigation and warrant of arrest-court
expressed
its
great
concern
with
shocking state of affairs that-no action
taken in furtherance of direction of
Court-electricity
theft
being
noncognizable offence-such negligence on
the part of power corporation resulted
irreparable loss of revenue and immense
suffering to honest consumers direction
issued to approach before the Magistrate
under section 155 (2) of the Codesubmit the progress report in the next
date-the C.M.D. Power Corporation shall
personally appear before the Court.

Held: Para 13

We, therefore think it imperative to now
issue a mandamus directing that that
immediate measures be taken in the
present cases as well as in all other
cases relating to Section 135 of the
Electricity
Act
and
other
related
provisions, in which arrest were earlier
stayed or are sought to be stayed, to
immediately file applications before the
Court concerned for investigations and
arrests of the accused under section
155(2) P.C within three weeks. The
compliance report
in
all the cases
mentioning details of all the cases
relating to power thefts and the dates
when the applications have been moved
426 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
before
the
Courts
concerned,
the
progress
of
investigations
including
arrests shall be submitted to this Court
on or before 19.3.2007. The Court will
take an extremely serious view in case of
any non-compliance with this order and
may be constrained to summon the
Managing
Director,
(U.P.
Power
Corporation Limited) Lucknow, or the
DIG
(Public
Grievances),
DGP
Headquarters, Lucknow and hold them
answerable if it finds any laxity in
compliance with this order.

(Delivered by Hon'ble Amar Saran, J.)

1. We have heard learned counsel
for the petitioners, Shri W.H. Khan and
Shri Rajendra Kumar Mishra, learned
counsel
appearing
for
U.P.
Power
Corporation Limited, Shri V.S. Mishra,
learned Government Advocate assisted by
Shri A.K. Sand, learned Additional
Government Advocate.

2. Since all the above-mentioned
writ petitions involve the same questions
of fact and law, they have been heard
together and are being disposed of by this
common interim order. However, for
convenience we are taking up writ
petitions No. 15622 of 2006 (Udai Veer
Vs. State of U.P. and others), 15687 of
2006 (Ram Chandra Mishra Vs. State of
U.P. and others) and 1190 of 2007
(Parasu Ram Pandey Vs. State of U.P. and
others) as leading cases in which counter
affidavits have been filed by the U.P.
Power Corporation Limited or the State.

3. All the above-mentioned writ
petitions have been filed challenging the
registration of criminal cases against the
petitioners inter alia under Section 135 of
the Electricity Act, 2003 on the basis of
first
information
reports
essentially
relating to the theft of electricity. It may
be mentioned that by means of an earlier
leading writ petition No. 10090 of 2005,
Mustaq Vs. State of U.P. and others
(reported in 2006(6) ALJ 257 which was
connected with a large number of writ
petitions, orders were passed by a
Division Bench of this Court comprising
Hon'ble Amitava Lala and Hon'ble Shiv
Shankar, JJ on 15.9.2006 disposing of the
writ petitions with certain directions. It
was held in the said decision that the
offence of theft of electricity could not be
made a cognizable offence with the aid of
Rule 12 of the Electricity Rules, 2005 as
the said offence was non-cognizable in
view of Section 151 of the Electricity Act.
However, as stealing of electricity was a
social crime, which infringed the personal
right of a citizen in all possible manner in
respect of an essential service, causing
suffering
to
honest
consumers
of
electricity, hence till the Act was
amended, the police officer or appropriate
authority under the Electricity Act could
make applications before the Magistrate
under Section 155(2) of the Code of
Criminal Procedure
for investigating
criminal cases against offenders. The
Division Bench concluded its judgement
with the following words:

"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.
2 All] Udaiveer V. State of U.P. and others
427
Thus,
the
writ
petition
stands
disposed of."

4. To our dismay although the said
judgement was delivered 5 months ago,
we find that neither the police, nor the
electricity department/ power corporation
has taken any steps in furtherance of the
said decision for obtaining permission
from
the
competent
Court
for
investigating cases against the accused, in
blatant violation of the mandate of the
earlier Division Bench to obtain the said
permission within one month of the order.

5. This unpardonable laxity does
lead this Court to wonder whether the
department/ power corporation and the
police are not hands in gloves or
sympathetic to the thieves of electricity as
they do not appear to be at all serious in
bringing to book thousands of offenders
involved in power thefts who have
obtained stays of arrest on the technical
plea that the offence is non-cognizable,
when the answer to the problem was
provided by the earlier division bench
itself,
viz.
proceeding
with
the
investigations and arrests after filing
applications before the Court concerned
under section 155(2) Cr.P.C within a
fixed time frame. Such negligence and
inaction on part of the power corporation
and the police has resulted in irreparable
loss
of
revenue
to
the
electricity
department/
power
corporation
and
immense suffering to honest consumers,
who regularly pay their electricity dues
and yet are denied regular and continuous
supply of power which is largely due to
power thefts.

6. In writ petition No. 15622 of 2006
preferred by Udaiveer, we had passed an
order on 4.1.2007 after hearing various
parties, which included Sri Ashok Nigam,
learned Additional Solicitor General for
Union of India, the learned Government
Advocate for the State and Shri W.H.
Khan and Shri Ranjit Saxena for U.P.
Power Corporation to inform this Court as
to what follow up measure have been
taken in pursuance of the earlier order of
the Division Bench comprising Hon'ble
Amitava
Lala
and
Hon'ble
Shiv
Shanker,JJ dated 15.9.2006. We had
directed that the Central Government,
State
Government
and
U.P.
Power
Corporation act in a coordinated manner
to give effect to the directions of the
aforesaid Division Bench in writ petition
No. 10090 of 2005 and that in the
meantime the order passed in the said writ
petition was to apply mutatis mutandi to
this petition as well.

7. In writ petition No. 1190 of 2007
preferred by Parasu Ram Pandey, a
supplementary counter affidavit has been
filed by the Chief Engineer (Distribution)
U.P.P.C.L. on behalf of U.P. Electricity
Power Corporation, which contains a
letter dated 9.10.2006 written by the
Superintending
Engineer
(Legal)
Lucknow, addressed to the Managing
Directors of various divisions of the U.P.
Power
Corporation
asking
them
to
comply with the order of the High Court.

8.

Now
it
appears
that
in
consequence of the correspondence of
Shri W.H. Khan enquiring as to what
steps have been taken by the Power
Corporation in pursuance of the directions
of the earlier Division Bench, another
letter dated 17.2.2007 has been written by
the Chief Engineer (Commercial) to the
Managing Directors of all the divisions
that the subordinate officers of their
divisions have not given any compliance
428 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
report to the U.P. Power Corporation
Limited and that effective measure be
taken in pursuance of the order of
Allahabad High Court dated 15.9.2006 for
lodging FIRs, effecting arrests and taking
up other criminal proceedings after taking
permission from the Courts concerned.
The said permission could be taken by the
Executive Engineer concerned or the
police in appropriate cases.

9. Contrary to this circular, another
counter affidavit has been filed by Shri
Rajendra Kumar Mishra dated 14.2.2007,
which contains a circular letter dated
13.2.2007 of the Director, Ministry of
Power, Government of India, New Delhi
addressed to the Managing Director,
UPPCL, copies of which were also sent to
Dr. Ashok Nigam, learned Additional
Solicitor General of India and Shri
Rajendra Kumar Mishra, Advocate, that
in consultation with the Department of
Legal Affairs a decision has been taken to
file an SLP against the decision of the
Division Bench of Allahabad High Court
in writ petition No. 10090 of 2005. Also
that the Electricity (Amendment) Bill
2005 seeking amendments to a few
sections of the Electricity Act, 2003
(including Section 151) is said to be ready
after its consideration by a Parliamentary
Standing committee of energy and is
likely to be presented before the House in
the forthcoming budget session. Clause 4
of the Statement of Object and Reasons
prepared on 20.12.2005 insofar as it is
applicable to this case reads as follows:

"4. As per the provisions contained
in section 151 of the Act, the offence
relating to theft of electricity, electric
lines and interference with meters 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."

10. In writ petition No. 15687 of
2006 (Ram Chandra Mishra Vs. State of
U.P and others) a counter affidavit of
Additional
Superintendent
of
Police
(Crime)
DGP
Headquarters,
U.P.,
Lucknow dated 14.2.2007 has been filed
by Shri A.K. Sand, learned Additional
Government Advocate, which contains a
reference to the minutes of a meeting of
the Power Corporation dated 3.1.07 for
giving effect to the orders of this Court in
writ petition No. 10090 of 2005 for
investigating the matters after taking
permission of the concerned courts.

11. There is another letter of the
Additional
Director
General
(Public
Grievance) dated 8.2.2007 which also
seeks compliance of the order passed in
writ petition No. 10090 of 2005, and the
illegality of the police straight away
registering FIRs and investigating these
cases as the said offences have been held
to be non-cognizable.

12. It would be incumbent on this
Court to point out that this Court is
extremely disappointed with the desultory
compliance in calling offenders to book,
who are engaged in theft of electricity
even though the judgement of the
Division Bench was pronounced on
2 All] Udaiveer V. State of U.P. and others
429
15.9.2006 and five months have elapsed
and the Union of India is still only
thinking of filing an SLP against the said
judgement. One wonders whether the
Power Corporation, the State and Central
governments are at all serious in checking
thefts of electricity and in increasing the
revenue earning from electricity so that
there could be smooth and continuous
supply of electricity to honest consumers.
Likewise, only a hope is expressed that in
all likelihood the amendment bill seeking
amendment of the Electricity Act (2003)
and the Rules framed thereunder shall be
passed in the forthcoming budget session
and that offences of power theft shall be
made cognizable offences. In the same
vein we also notice that no clear
directions have been issued by the U.P.
Power Corporation or its legal cell
directing the Executive Engineers or
subordinate officers concerned or by the
DIG
(Public
Grievances),
DGP
Headquarters,
Lucknow
to
the
subordinate police officers about the steps
needed
and
the
manner
in
which
applications are to be moved before the
Courts concerned under Section 155(2) of
the Code of Criminal Procedure for
commencing
investigation
and
for
arresting the accused for offences under
the Electricity Act.

13. We, therefore think it imperative
to now issue a mandamus directing that
that immediate measures be taken in the
present cases as well as in all other cases
relating to Section 135 of the Electricity
Act and other related provisions, in which
arrest were earlier stayed or are sought to
be stayed, to immediately file applications
before
the
Court
concerned
for
investigations and arrests of the accused
under section 155(2) P.C within three
weeks. The compliance report in all the
cases mentioning details of all the cases
relating to power thefts and the dates
when the applications have been moved
before the Courts concerned, the progress
of investigations including arrests shall be
submitted to this Court on or before
19.3.2007. The Court will take an
extremely serious view in case of any
non-compliance with this order and may
be constrained to summon the Managing
Director,
(U.P.
Power
Corporation
Limited) Lucknow, or the DIG (Public
Grievances),
DGP
Headquarters,
Lucknow and hold them answerable if it
finds any laxity in compliance with this
order.

14. The Registry is also directed to
furnish the list of cases in which interim
stays of arrests or other relief have been
passed or which have been disposed of
along with writ petition No. 10090 of
2005 on the next date of listing.

15. The Managing Director, U.P.
Power Corporation Limited, Lucknow is
also directed to furnish details of the
amount and percentage of loss in revenue
due to power theft and non-payments for
power consumed on the next date of
listing. On that date the State of U.P.,
Power Corporation and Union of India
shall also apprise the Court about the
progress made in having the Bill passed in
Parliament amending the Electricity Act
(2003) and the Rules framed for treating
offences under the Electricity Act as
cognizable and/ or moving the apex Court
for challenging the decision of the earlier
Division Bench in Cr. Misc. Writ Petition
No. 10090 of 2005, Mustaq Vs. State of
U.P. and others declaring offences under
the Electricity Act as non-cognizable
offences.
430 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
16. Till the date of moving of
applications under Section 155(2) before
the competent Court, the arrest of the
petitioners shall remain stayed. The
practice of moving applications under
section 155(2) Cr.P.C by the police or
other competent authority before the
concerned
Court
for
investigating
offences under the Electricity Act shall
continue to be followed in all cases
henceforth until there is an amendment in
the Electricity Act treating the said
offences as cognizable offences or an
order is obtained from the apex Court
staying the operation of the earlier
Division Bench in criminal miscellaneous
Writ No. 10090 of 2005 declaring
offences under the Electricity Act to be
non-cognizable offences.

17. List this case on 19.3.2007 for
further orders.

Office is directed to communicate
this order to the various parties within one
week for necessary compliance.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2006

BEFORE
THE HON'BLE BHARATI SAPRU, J.

Civil Misc. Writ Petition no. 17514 of 2004

Suraj Singh

...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar
Sri W.H. Khan
Sri Akshaya Kumar
Sri J.H. Khan
Sri Gulrez Khan

Counsel for the Respondents:
Sri Shree Prakash Singh
Suman Sirohi
S.C.

U.P. Police Regulation-Regulation 493
(c)-Reinstatement-acquittal in criminal
appeal-denial on the ground-that on
benefit of doubt order of acquittal
passed-held-in absence of provisionregarding nature of acquittal-hence the
objection is nothing but sitting order
court-entitled for reinstatement.

Held: Para 18

Such being the case, the petitioner
having
been
tried
and
judicially
acquitted which was later on confirmed
by the Hon'ble Apex Court by its order
dated 23.9.2003, there could be no
doubt that the he has been ''judicially
acquitted' and therefore he is entitled for
the benefit of Regulation 493 (c) of the
U.P. Police Regulations. The order dated
30.10.2000, by which the distinction has
been sought to be made, is clearly
misconceived
and
deserves
to
be
quashed.

1989 (1) UPLBEC-624
AIR 1991 SC-1210

Constitution of India Art. 226-Back
wages-if the authorities kept away from
working-employee willing work-despite
of final judgement of acquittal-No order
passed-held-entitled for reinstatement
with full back wages.

Held: Para 18

Such being the case, the petitioner
having
been
tried
and
judicially
acquitted which was later on confirmed
by the Hon'ble Apex Court by its order
dated 23.9.2003, there could be no
doubt that the he has been ''judicially
acquitted' and therefore he is entitled for
the benefit of Regulation 493 (c) of the
U.P. Police Regulations. The order dated
30.10.2000, by which the distinction has