INTRODUCTION
Part XIV of Electricity Act, 2003 (hereinafter, ‘the Act’) provides for offences which have been or can be committed in electricity sector. There can be various forms of offences, for example theft of electricity, tampering or interference with electric meters, theft of electric lines and materials etc. The act specifies that theft of electricity can be done through various means and methods about which we will be discussing in this post.
The Act further provides for redressal systems by setting up Special courts. Special courts are specifically established to hear grievances of individuals and corporations who have been affected by commission of any offence mentioned in Sections 135 to 140 and 150 of the Act. Further, for purpose of investigation of an offence punishable under the Act, police officers have been granted all powers as provided in Chapter XII of ‘Code of Criminal Procedure, 1973’ (CrPC).
PUNISHABLE OFFENCES
I. Theft of Electricity
Section 135 sets out elaborately what is theft of electricity and what actions would indicate theft. Anybody who dishonestly taps or makes a connection with any line or cable (overhead, underground or underwater) or service line or service facility of a licensee in order to abstract, consume or use electricity is considered to have committed an offence of ‘theft of electricity.’ Anybody who tampers with an electric meter or uses a tampered meter or any other devise or method which interferes with accurate metering of electric current for personal or corporate gains is liable for an offence of theft of electricity. Further, anybody who damages or destroys an electric meter or uses electricity through a tampered meter or uses electricity for any other purpose other than for which, usage of electricity was authorised is deemed to have committed theft of electricity.
Section 135 further stipulates that anybody found guilty of theft of electricity is liable for imprisonment of up to three years, or fine or both. [1]
In the case of JTG Alloys Pvt. Ltd. Mandi Govindgarh v Punjab State Power Corporation[2], it was held that ‘theft of electricity’ was different from ‘unauthorised use of electricity,’ wherein there was no right of appeal in case of unauthorised use of electricity. The former employs an element of dishonest intention.
Punishment on account of quantity extracted
If load extracted through illicit means is below 10KW, fine imposed upon first conviction is not less than three times the financial gain on account of such theft of electricity. Upon subsequent conviction, fine imposed is not less than six times the financial gain.
If load extracted is above 10KW, fine imposed upon first conviction is not more than three times the financial gains. Upon subsequent conviction, the liability is jail term for at least six months (can extend up to five years) along with fine not less than six times the financial gains. Further, such person will be debarred from getting electricity supply from any source for at least three months (can extend up to two years depending upon the gravity of the offence).
If proved that some artificial means which is not authorised by the Board or licensee or supplier has been used for abstraction, consumption, or use of electricity by consumer (until proven otherwise), it will be presumed that such abstraction, consumption or use by artificial means has been dishonestly caused by consumer. Burden to prove innocence is upon consumer.[3]
In Jagannath Singh v B.S Ramaswamy[4], it was held that under Rule 56(2) of ‘Indian Electricity Rules, 1956,’ consumer is required to use all reasonable means in his power to ensure that no seal affixed to his meter is broken (otherwise than by supplier). If seal is broken in contravention to Rule 56, even the consumer who has not himself broken the seal is punishable under Rule 138, with fine, unless he proves he used all reasonable means in his power to ensure that seal is not broken.
In this case, the SC also laid down a test for perfected means of dishonest abstraction whereby,
- Tampering by consumer must be proved
- Tampering must be of a ‘functional character’ to enable pilferage or theft by itself
- Tampering should be capable of retarding to correctly record quantity of electricity consumed
- Evidence must conclusively prove dishonest abstraction by consumer
In Santaben Ranchhodbhi Patel v GUVNL[5], the court held that if laboratory tests show that seal is broken by ‘rusting’ and no tampering is found, it could not be presumed that meter reading had been reversed and so, theft of electricity was not proved.
Dishonest Abstraction of Electricity
In Ram Chandra Prasad. v State of Bihar[6], the SC held that it was not sufficient to say that meter had been tampered and that it was under control of the accused. It was also necessary to establish that there was ‘dishonest abstraction’ of energy by artificial means which would raise a presumption in favour of prosecution.
Unauthorised reconnection to the main
In Sajeetha Begum v Tamil Nadu Electricity Board[7], disconnection of power supply was for non-payment of consumption charges. The service connection was found to have been unauthorisedly reconnected to main which was an offence committed u/s 135, where extra levy was worked when the matter was in provisional assessment. Consequently, consumer filed a writ petition. It was held that consumer should file objection to provisional assessment before appropriate authority. Further, court granted relief of restoration of electric supply subject to outcome of the petition. Subsequently, it was held that drawing of electricity from main line without any authority or permission had to be discouraged, and thereby raising punitive bill was proper.
A licensee should disconnect supply upon detecting theft
Upon detection of theft of electricity, any licensee or supplier should immediately disconnect electricity supply. However, only such rank of officer of licensee or supplier company who is authorised by the appropriate commission can disconnect supply of electricity. Thereafter, such officer must lodge a complaint in writing relating to commission of offence in the nearest police station having jurisdiction, within twenty-four hours of such disconnection. Further, upon deposit of assessed amount of electricity charges, such officer of licensee company should restore supply within forty-eight hours.[8]
In Dashmesh Ice & Oil Factory v Jaipur Vidyut Vitran Nigam Ltd.[9], it was held in respect of theft that action of the licensee in not restoring electricity supply in absence of payment (as determined in third proviso to Section 135(1A)) is not illegal; but payment, if made shall be subject to final outcome of civil liability determined by special court under Section 154(5) and is to be adjusted as per Section 154(6).
Authorised officer to inspect and seize
‘Authorised officers’ of licensee companies have been granted powers to search, seize or break open any property/premises or examine any books of accounts if they have ‘reason to believe’ that unauthorised use of electricity is being carried on at that location/premise. The occupant of the premise (or anybody designated on his behalf) must be present during the search, and a list of all items seized during search should be handed over to him. To this effect, provisions of CrPC relating to search and seizure will apply during searches conducted under the Act.[10]
The expression ‘reason to believe’ has been judicially taken to mean honest application of mind to facts and circumstances of case, and the law on the subject, as was held in M.A Rashid v State of Kerala[11].
In the case of H. Anurag v Govt. of Tamil Nadu[12], the SC held that even an intangible thing like electricity can be regarded as “goods.”
As held in Jagannath Singh v B.S. Ramaswamy[13], burden of proving theft lies on the prosecution. As ‘subject’ of theft is electricity and not any material object, the proof, in almost all circumstances, must be of a circumstantial character. This was reiterated in Ram Chandra Prasad v State of Bihar[14].
In Madhya Pradesh Electricity Board v Basantibai[15], it was held that where the Executive engineer found the meter’s seal intact at time of inspection, and only one phase of the installed meter was found closed, allegations of fraud do not sustain.
Theft of electricity as cognizable offence
In Chhabi Rani Ghosh v CESC Ltd[16], it was held that since an offence u/s 135 is punishable with imprisonment for three years, it must be regarded as cognizable offence and therefore, on receipt of information, police must register an FIR. It was further held that in absence of a warrant from the Magistrate, Police Authorities should act only in aid and exercise of powers by authorised officers.
Disconnection without notice to the consumer
In Municipal Corporation of Delhi v Anjana Iron and Steel Co. Ltd.[17], it was laid down that electricity supply should not be disconnected by the board, without a notice to consumer. Electricity supply cannot be disconnected on allegations that consumer had committed theft, where the same is denied. If allegations are true or not have to be decided by appropriate proceedings. The SC also held that it is pertinent to serve notice on the concerned party before discontinuing supply.
II. Theft of Electric Lines and Materials
Section 136 of the Act sets out provisions applicable for theft of electric lines and materials, irrespective of whether such act is done for personal gain. Anybody who dishonestly cuts, removes, takes away or transfers any electric line or meter from a tower, pole, any other installation or place of installation or site where it may be rightfully stored (including during transportation) without the consent of licensee, such person has committed an offence of theft of electric lines and materials.
Anybody who stores or possesses any electric line, material, or meter without consent of the owner has also committed an offence u/s 136 of the EA. Similarly, anybody who loads, carries, or moves from one place to another any electric line, meter, or material without consent of owner is guilty of offence u/s 136 of EA.
Anybody found guilty of theft of electric lines and materials is liable for imprisonment up to three years, or fine or both.
If anybody found guilty of theft of electric lines and materials for a second time, that person will be liable for jail term of at least six months (can extend up to five years) along with fine, not less than ten thousand rupees.
III. Punishment for Receiving Stolen Property
Anybody who dishonestly receives any stolen electric line or material, knowing or having reason to believe the same to be stolen property, that person will be liable for a jail term (either simple or rigorous) which can extend up to three years, or fine or both.
IV. Interference with Meters or Works of Licensees
The definition of ‘Works’ is provided in Section 2(77) of the Act. Accordingly, works include any electric line, building, plant, machinery, apparatus, or any other thing of whatever description required to transmit, distribute, or supply electricity to public and to carry into effect objects of the license granted under the Act. The law states that anybody who interferes with meters or works of licensees is liable to be punished. Nuances of this offence is discussed in detail hereunder.
Anybody who unauthorisedly connects any meter, indicator, or apparatus with any electric line through which electricity is supplied or disconnects the same from any electric line is guilty for committing the offence of ‘interference with meters or works of licensees.’ Anybody who unauthorisedly reconnects any meter, indicator or apparatus with any electric line or other works, being the property of the licensee when the said electric line has been disconnected has committed an offence under section 138. Further, anybody who lays or connects any works for the purpose of communicating with any other works belonging to the licensee, or maliciously injures, or fraudulently alters the index of any meter, indicator or apparatus preventing it from duly registering has committed an offence u/s 138. [18]
Anybody found guilty under this offence is punishable with jail term (extendable up to three years), or fine (extendable up to ten thousand rupees), or both. For a continuing offence (offence recurring everyday afresh) is punishable with daily fine of five hundred rupees. In State of Bihar v Deokaran Nanshi[19], the SC defined a continuing offence as an offence which occurs every day and is susceptible of continuance.
Consumers are mandated to take proper precautions to maintain safety and security of their meters/indicators
In Gujarat Microwax Ltd. v Chief Engineer, Uttar Gujarat Vij Co. Ltd[20], it was held that where officers, on inspection found seals intact at premises of the petitioner company, they cannot later claim that they could detect malpractice.
V. Negligently Breaking or Damaging Works
Negligence means not observing due care and safeguards, which is either statutorily laid, or simply a matter of rational prudence. So, anybody who negligently damages any material connected with the supply of electricity is liable for punitive compensation, which can extend up to ten thousand rupees.
Persons to be tried by Special courts
In Shiva Parvati Marbles v Ajmer Vidyut Vitaran Nigam Ltd.[21], the court held that persons charged under Sections 135 to 139 (for offences mentioned above) are to be tried by Special Courts. Imposition of punishment u/s 135 has nothing to do with civil liability (levy of charges for unauthorised use of electricity).
VI. Penalty for Intentionally Injuring Works
Anybody, with mala fide intent or motive of cutting off electricity, cuts/injures (or attempts) any electric supply of works is liable for punitive compensation, which can extend up to ten thousand rupees.
After going through the punishable offences under the Act, it can be observed that the Act is devoid of any provision for restitution or repair by the person causing such damage, or recovery of any cost from him.
VII. Abetment
Abetment to commit an offence is an offence under the Indian Penal Code. Anybody who abets commission of an offence is liable to be punished is accordance with that punishment provided for the offence (subject to relevant IPC provisions). To constitute abetment, abettor must be shown to have intentionally and deliberately aided the commission of offence. This was held in case of Madan Raj v State of Rajasthan[22].
Further, if prima facie during initial stages, no case is made against the accused, allegations of abetment would not arise.
Without prejudice to any penalty or fine which can be imposed or prosecution proceeding which can be initiated under the Act (or any other law in force), if any officer or other employee of the Board or licensee enters into any agreement to do, abstains from doing, permits, conceals or connives at any act or thing whereby any theft of electricity is committed, such officer is liable to be punished with imprisonment for a term which can extend up to three years, or with fine, or both. However, the amount for such fine has not been specified in the Act.
Third proviso to section 150 opens with a non-obstacle clause. It states that notwithstanding anything contained in sub-section (1) of S.135, sub- section (1) of S.136, S.137 and S.138, the license, certificate of competency, or permit issued under the rules made under this Act to any person who when acting as an electrical contractor, supervisor or worker, abets the commission of an offence punishable under sub-section (1) of S.135, sub-section (1) of S.136, S.137, or S.138, on his conviction for such abetment, his license of permit can also be cancelled by the licensing authority. Further, no order of cancellation of permit or license can be made without giving such person an opportunity of being heard, bearing in mind the principles of natural justice.[23]
An explanation clarifies that ‘licensing authority’ means the officer who for the time being is authorized to issue or renew such license, certificate of competency, or permit.
CONCLUSION
Certain common practices to dishonestly procure electricity, or to cut its supply have been categorised as offences punishable under the Act. Offences like theft of electricity (through different mediums) under section 135 have been recognised as cognizable offences by Courts. This gives police and the administration adequate powers to initiate FIR and proceed with investigation of the matter.
Any court procedure can be a stressful and time taking process. To this end, Special Courts (tribunals) in areas across the country have been created. The purpose is to consider grievances of those individuals or corporations who have been subject to commission of such offences in a fair and timely manner (without having to go through the hassles of moving the district courts or High Courts, which are already burdened with pending matters). However, Supreme Court remains the appellate body in case of dissatisfaction with Special Court’s decisions.
[1] Section 135, The Electricity Act, 2003 (36 0f 2003)
[2] AIR 2014 (NOC) 58 P&H
[3] K.K Mitra, Commentaries on the Electricity Act, 2003
[4] AIR 1966 SC 849
[5] AIR 2013 (NOC) 1236 Guj.
[6] AIR 1967 SC 349 : 1966 (3) SCR 517 : 1967 Cri.L.J. 409.
[7] AIR 2013 (NOC) 287 Mad.
[8] Supra 3
[9] AIR 2014 Raj 149.
[10] Supra 3
[11] AIR 1974 SC 2249
[12] AIR 1986 SC 63
[13] AIR 1966 SC 849
[14] Supra 6
[15] AIR 1987 SC 71
[16] AIR 2006 NOC 171 (Cal).
[17] AIR 1990 SC 882
[18] Supra 3
[19] AIR 1973 SC 908
[20] AIR 2013 NOC 394 (Guj).
[21] AIR 2010 Raj 86.
[22] AIR 1970 SC 436
[23] Supra 3