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.

C.A.@S.L.P(c) No.22207/2018 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.6547 OF 2019
[Arising out of S.L.P.(C) No.22207 of 2018]
West Bengal State Electricity
Distribution Company Ltd. & Ors. … Appellants
Versus
M/s. Orion Metal Pvt. Ltd. & Anr. … Respondents
J U D G M E N T
R. Subhash Reddy, J.
1. Leave granted.
2. This civil appeal is filed by the appellant- West
Bengal State Electricity Distribution Company Limited
and others, aggrieved by the judgment and order dated
18.12.2017 passed by the High Court of Calcutta in
F.M.A. No.520 of 2017 and the corrected order dated
07.02.2018. By the impugned order, the intra Court
C.A.@S.L.P(c) No.22207/2018 2
appeal preferred by the respondent company was
allowed by the Division Bench of High Court.
3. Necessary facts, in brief, are as under:
(a) The 1st respondent herein is the consumer of
electricity from the appellant- West Bengal State
Electricity Distribution Company Limited & Ors. There
is a supply agreement entered into between the
parties on 22.12.2004. The officials of the appellant
company served a notice dated 28.10.2016 upon the 1st
respondent, in exercise of power under Class IV of
the West Bengal Electricity Regulatory Commission
Electricity Supply Code, 2007 for conducting an
inspection in the metering system of the respondent.
The respondent-company is a centralized bulk high
voltage consumer of electricity in the Hooghly
region, with a contracted load of 1450 KVA. After
service of notice on the 1st respondent on 28.10.2016,
inspection was made by the Superintending Engineer,
Divisional Engineer, Divisional Engineer (Manager),
Assistant Engineer of Chandanangore Division, in the
premises of the respondent herein.
C.A.@S.L.P(c) No.22207/2018 3
(b) During the inspection, it was noticed by the
inspecting team that input current is abnormally high
from output current at TTB end in respect of the R &
B Phase of PT secondary wires. The inspecting team on
breaking open the TTB has also found some foreign
material inside. In view of such discrepancies found
during the inspection, the inspection team was of the
view that there was a theft of energy by tampering
the meter by the respondent-company. The three-phase
meter and the metering equipment was seized by the
inspecting team by preparing a seizure list. In view
of such discrepancies noticed during inspection, in
exercise of power under Section 126(1) of the
Electricity Act, 2003 (for short ‘the Act’),
provisional assessment for loss of energy by
un-metered consumption was made by one Mr. B. Saha,
Superintending Engineer/Assessing Officer of the
appellant-company. The provisional assessment was
made assessing the value of energy which was consumed
on account of un-metered consumption at
Rs.13,41,17,482-30 paise (Rupees thirteen crores
forty one lakhs seventeen thousand four hundred and
eighty two only).
C.A.@S.L.P(c) No.22207/2018 4
(c) After inspection, a criminal complaint was also
lodged before the local police by the Superintending
Engineer (Commercial), Hooghly region, of the
appellant company, complaining theft of energy by the
respondent. In the complaint made by the appellant,
it was alleged that by inserting a foreign material
into the meter, the respondent-company has indulged
in theft of energy.
(d) On the basis of criminal complaint made by the
Superintending Engineer (Commercial), a criminal case
has been registered against the respondent-company
and the police have submitted a charge-sheet in the
criminal case.
(e) Aggrieved by the provisional assessment and the
consequential demand, the respondents have filed writ
petition in W.P. No.30449(W) of 2016 before the High
Court, questioning the jurisdiction of the Assessing
Officer in issuing the provisional assessment and the
consequential demand for a sum of Rs.13,41,17,482-30
paise. In the writ petition, one of the grounds was
that the Assessing Officer, who prepared the
provisional assessment, not being a party to the
inspection team, had no authority to make the
C.A.@S.L.P(c) No.22207/2018 5
provisional assessment under Section 126(1) of the
Act. In the writ petition, it was alleged that
provisional assessment made was not in accordance
with Section 126(1) of the Act, as such, such
assessment cannot be given effect to.
(f) Learned single Judge of the High Court, on the
ground that the appellant-Distribution Company has
not produced any material to show that the Assessing
Officer was part of the inspection team, has held
that assessment and consequential demand made in the
provisional assessment proceedings was not in
accordance with Section 126(1) of the Act and quashed
the same. While allowing the writ petition, the
learned single Judge has directed the State
Government to appoint any member of the inspection
team as an Assessing Officer to make fresh
assessment.
(g) Aggrieved by the order of the learned single
Judge dated 15.12.2016, the respondent-writ
petitioners have filed intra Court appeal before the
High Court. Following the directions, as contained
in the order passed by the learned single Judge, it
appears, a Member of the inspection team was
C.A.@S.L.P(c) No.22207/2018 6
appointed as an Assessing Officer by the State
Government and the said officer has provisionally
assessed the value of un-metered consumption of
electricity and also made final assessment after
giving opportunity for filing objections.
(h) The fresh assessment order, which is made in
compliance of directions issued by the learned single
Judge, is also questioned in the pending appeal by
filing an interlocutory application by the
respondents. In view of the said interlocutory
application, the Division Bench of the High Court has
allowed such application permitting the respondents
to challenge the fresh assessment made pursuant to
directions issued by the learned single Judge, and
passed the impugned order allowing the appeal
preferred by the respondents.
(i) 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
C.A.@S.L.P(c) No.22207/2018 7
theft of energy under Section 135(1)(a) of the Act,
no assessment is permissible under Section 126(1) of
the Act.
(j) Before the High Court, it appears that
respondents have also pleaded that the civil
liability, if any, of the respondents can be
determined only under sub-section (5) of Section 154
of the Act. While considering the scope of Sections
154, 135(1)(a) and 126 of the Act, the High Court has
held that when a criminal complaint is lodged
alleging theft of energy by the consumer and when
supply of electricity is disconnected on account of
such offence alleged, only in cases where restoration
of supply is sought by the consumer, agreeing to
deposit the assessed amount of un-metered
consumption, provisional assessment can be made under
Section 126 of the Act. The High Court has drawn a
distinction to exercise power under Section 126(1) of
the Act, in cases where consumer seeks restoration of
supply after disconnection and in cases where
restoration of supply is not sought for. The High
Court has held that only in cases where restoration
is sought after disconnection, authorities can resort
to make assessment under Section 126(1) of the Act,
C.A.@S.L.P(c) No.22207/2018 8
otherwise, the civil liability can be determined by
Special Court only by following the procedure under
sub-section (5) of Section 154 of the Act.
4. We have heard Mr. Jaideep Gupta, learned Senior
counsel appearing for the appellants and Mr. Gaurav
Jain, learned counsel for the respondents.
5. Having heard the learned counsels on both sides,
we have perused the impugned order and other
materials placed on record.
6. 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 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.
C.A.@S.L.P(c) No.22207/2018 9
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.
(a) 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. Learned
Senior counsel has also placed reliance on the
judgment in the case of Executive Engineer Southern
Electricity Supply Company of Orissa Limited
(SOUTHCO) & Another v. Shi. Seetaram Rice Mill1.
7. On the other hand, learned counsel appearing for
the respondents, in support of the findings recorded
by the High Court, has submitted that the
1
(2012) 2 SCC 108
C.A.@S.L.P(c) No.22207/2018 10
unauthorized use of energy and theft of energy are
two different aspects covered under different
provisions of the Act. It is submitted that the power
conferred for provisional assessment under Section
126(1) of the Act, is confined to cases where there
is an allegation of unauthorized use of energy and
the allegation of theft of energy is to be prosecuted
only under Section 135(1)(a) of the Act. It is
submitted that only in cases where authorities prove
the guilt of the accused, the Special Court is
empowered to determine civil liability under subsection (5) of Section 154 of the Act.
(a) It is further submitted that once power supply
is disconnected, where there is a request by the
consumer for restoration of power supply, the
authorities can make assessment under Section 126(1)
of the Act. In support of this plea, the learned
counsel brought to our notice a judgment of the
learned single Judge of Madhya Pradesh High Court in
the case of The Hotel Adityaz Limited v. Madhya
Pradesh Kshetra Vidyut Vitran Company Limited, Bhopal
& others2 . In the aforesaid judgment, learned single
Judge of the High Court has held that where there is
2
 AIR 2016 (NOC) 39 (M.P.)
C.A.@S.L.P(c) No.22207/2018 11
an allegation of theft of energy, such cases will
fall only under Section 135 of the Act and Section
126 of the Act, as no application.
8. Before we proceed further, we have looked into
the Objects and Reasons of the Electricity Act, 2003,
and also the relevant provisions i.e Sections 126,
135(1)(a), 153 and 154 of the Act.
9. Prior to Electricity Act, 2003, generation and
supply of electricity was governed by the provisions
under Indian Electricity Act, 2010, 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 harmonizing and rationalizing 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
C.A.@S.L.P(c) No.22207/2018 12
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.
10. The relevant sections for the disposal of this
appeal reads as under:
“Section 126. Assessment:- (1) If on an
inspection of any place or premises or
after inspection of the equipments,
gadgets, machines, devices found
connected or used, or after inspection
of records maintained by any person, the
assessing officer comes to the
conclusion that such person is indulging
in unauthorized use of electricity, he
shall provisionally assess to the best
of his judgment the electricity charges
payable by such person or by any other
person benefited by such use.
(2) The order of provisional assessment
shall be served upon the person in
occupation or possession or in charge of
the place or premises in such manner as
may be prescribed.
(3) The person, on whom an order has
been served under sub- section (2),
shall be entitled to file objections, if
any, against the provisional assessment
before the assessing officer, who shall,
after affording a reasonable opportunity
of hearing to such person, pass a final
order of assessment within thirty days
C.A.@S.L.P(c) No.22207/2018 13
from the date of service of such order
of provisional assessment, of the
electricity charges payable by such
person.
(4) Any person served with the order of
provisional assessment may, accept such
assessment and deposit the assessed
amount with the licensee within seven
days of service of such provisional
assessment order upon him:
(5) If the assessing officer reaches to
the conclusion that unauthorised use of
electricity has taken place, the
assessment shall be made for the entire
period during which such unauthorized
use of electricity has taken place and
if, however, the period during which
such unauthorised use of electricity has
taken place cannot be ascertained, such
period shall be limited to a period of
twelve months immediately preceding the
date of inspection.
(6) The assessment under this section
shall be made at a rate equal to twice
the tariff applicable for the relevant
category of services specified in subsection (5).
Explanation.- For the purposes of this
section,-
(a) “assessing officer” means an officer
of a State Government or Board or
licensee, as the case may be, designated
as such by the State Government;
(b) “unauthorised use of electricity”
means the usage of electricity –
(i) by any artificial means; or
(ii) by a means not authorised by the
concerned person or authority or
licensee; or
(iii) through a tampered meter; or
C.A.@S.L.P(c) No.22207/2018 14
(iv) for the purpose other than for
which the usage of electricity was
authorised; or
(v) for the premises or areas other
than those for which the supply of
electricity was authorized.”
The procedure for ‘theft of energy’ is covered by
Section 135 of the Act under Part IX. Section 135 of
the Act reads as under:
“Section 135. Theft of Electricity:- (1)
Whoever, dishonestly,-
(a) taps, makes or causes to be made any
connection with overhead, underground or
under water lines or cables, or service
wires, or service facilities of a
licensee or supplier, as the case may
be; or
(b) tampers a meter, installs or uses a
tampered meter, current reversing
transformer, loop connection or any
other device or method which interferes
with accurate or proper registration,
calibration or metering of electric
current or otherwise results in a manner
whereby electricity is stolen or wasted;
or
(c) damages or destroys an electric
meter, apparatus, equipment, or wire or
causes or allows any of them to be so
damaged or destroyed as to interfere
with the proper or accurate metering of
electricity; or
(d) uses electricity through a tampered
meter; or
C.A.@S.L.P(c) No.22207/2018 15
(e) uses electricity for the purpose
other than for which the usage of
electricity was authorised,
so as to abstract or consume or use
electricity shall be punishable with
imprisonment for a term which may extend
to three years or with fine or with
both:
Provided that in a case where the load
abstracted, consumed, or used or
attempted abstraction or attempted
consumption or attempted use –
(i) does not exceed 10 kilowatt, the
fine imposed on first conviction
shall not be less than three
times the financial gain on
account of such theft of
electricity and in the event of
second or subsequent conviction
the fine imposed shall not be
less than six times the financial
gain on account of such theft of
electricity;
(ii) exceeds 10 kilowatt, the fine
imposed on first conviction shall
not be less than three times the
financial gain on account of such
theft of electricity and in the
event of second or subsequent
conviction, the sentence shall be
imprisonment for a term not less
than six months, but which may
extend to five years and with
fine not less than six times the
financial gain on account of such
theft of electricity:
Provided further that in the
event of second and subsequent
conviction of a person where the load
abstracted, consumed, or used or
attempted abstraction or attempted
consumption or attempted use exceeds
C.A.@S.L.P(c) No.22207/2018 16
10 kilowatt, such person shall also be
debarred from getting any supply of
electricity for a period which shall
not be less than three months but may
extend to two years and shall also be
debarred from getting supply of
electricity for that period from any
other source or generating station:
Provided also that if it is
proved that any artificial means or
means not authorized by the Board or
licensee or supplier, as the case may
be, exist for the abstraction,
consumption or use of electricity by
the consumer, it shall be presumed,
until the contrary is proved, that any
abstraction, consumption or use of
electricity has been dishonestly
caused by such consumer.
(1A) Without prejudice to the
provisions of this Act, the licensee
or supplier, as the case may be, may,
upon detection of such theft of
electricity, immediately disconnect
the supply of electricity:
Provided that only such officer
of the licensee or supplier, as
authorized for the purpose by the
Appropriate Commission or any other
officer of the licensee or supplier,
as the case may be, of the rank higher
than the rank so authorised shall
disconnect the supply line of
electricity:
Provided 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 hours from the time of
such disconnect:
C.A.@S.L.P(c) No.22207/2018 17
Provided also that the licensee
or supplier, as the case may be, on
deposit or payment of the assessed
amount or electricity charges in
accordance with the provisions of this
Act, shall, without prejudice to the
obligation to lodge the complaint as
referred to in the second proviso to
this clause, restore the supply line
of electricity within forty-eight
hours of such deposit or payment;]
(2) Any officer of the licensee or
supplier as the case may be, authorized
in this behalf by the State Government
may –
(a) enter, inspect, break open and
search any place or premises in which he
has reason to believe that electricity
has been or is being, used
unauthorisedly;
(b) search, seize and remove all such
devices, instruments, wires and any
other facilitator or article which has
been, or is being, used for unauthorized
use of electricity;
(c) examine or seize any books of
account or documents which in his
opinion shall be useful for or relevant
to, any proceedings in respect of the
offence under sub-section (1) and allow
the person from whose custody such books
of account or documents are seized to
make copies thereof or take extracts
therefrom in his presence.
(3) The occupant of the place of search
or any person on his behalf shall remain
present during the search and a list of
all things seized in the course of such
search shall be prepared and delivered
to such occupant or person who shall
sign the list:
C.A.@S.L.P(c) No.22207/2018 18
 Provided 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.
(4) The provisions of the Code of
Criminal Procedure, 1973 (2 of 1974),
relating to search and seizure shall
apply, as far as may be, to searches and
seizure under this Act.”
The procedure to be followed by the Special Court
constituted under Section 153 of the Act is
prescribed under Section 154 of the Act.
Sub-sections (5) and (6) of Section 154 of the Act
read as under:
“(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 preceding 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 licensee or
the concerned person, as the case may
C.A.@S.L.P(c) No.22207/2018 19
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 sections
135 to 140 and section 150.”
11. A perusal of the aforesaid provisions and on
giving a conjoint reading of the same, it appears to
us that after an inspection of any place or any
premises of any consumer, when Assessing Officer
comes to a conclusion that the consumer is indulging
in unauthorized use of electricity, the provisional
assessment to the best of his judgment is to be made
in accordance with Section 126(1) of the Act and such
provisional assessment shall be served upon the
person in occupation of the premises. After giving
an opportunity to file objections to the provisional
assessment, the Assessing Officer is empowered to
pass a final order of the assessment assessing the
loss of energy, on account of unauthorized use of
C.A.@S.L.P(c) No.22207/2018 20
energy. The unauthorized use of electricity is
defined under Section 126(6)(b) of the Act. It is
clear from the aforesaid definition that unauthorized
use of electricity means, the usage of electricity by
any artificial means or by a means not authorized by
the concerned person or authority or licensee; or
through a tampered meter; or for the purpose other
than for which the usage of electricity was
authorized; or for the premises or areas other than
those for which the supply of electricity was
authorized.
12. It is clear from the reading of Section 126 (6)
(b)(iii) of the Act that instances of use of energy
through a tampered meter is included in the
definition of unauthorized use of electricity. If
that is so, there is no reason, for excluding the
power of the authorities for making assessment under
Section 126(1) of the Act to assess the loss of
energy, where electricity is used through a tampered
meter. All instances of unauthorized use of energy
may not amount to theft of electricity within the
meaning of Section 135 of the Act, but at the same
time, the theft of electricity which is covered by
C.A.@S.L.P(c) No.22207/2018 21
Section 135 of the Act, will fall within the
definition of unauthorized use of electricity. As per
Section 135(1A) of the Act, without prejudice to the
other provisions of the Act, the licensee or
supplier, as the case may be, upon detection of theft
of electricity, is empowered to disconnect the power
supply immediately. Further, as per the third proviso
to Section 135(1A) of the Act, the licensee or
supplier, as the case may be, on deposit or payment
of assessed amount or electricity charges, without
prejudice to the obligation to lodge a complaint, can
restore the power supply electricity within fortyeight(48) hours of deposit /payment of such amount.
Thus, it is clear that the authorities under the Act
are empowered to make a provisional and final
assessment by invoking power under Section 126(1) of
the Act, even in cases where electricity is
unauthorisedly used by way of theft. When a consumer
deposits the assessed amount, the licensee or the
supplier has to restore the power supply. The
assessed amount referred to in the aforesaid proviso,
relates to assessment which is contemplated under
Section 126(1) of the Act only. There is apparent
distinction between Section 126 and Section 135 of
C.A.@S.L.P(c) No.22207/2018 22
the Act. Section 126 forms part of the scheme which
authorizes electricity supplier to ascertain loss in
terms of revenue caused to it by the consumer by his
act of “unauthorized use of electricity” whereas
Section 135 deals with offence of theft if he is
found to have indulged himself in the acts mentioned
in clauses (a) to (e) of sub-section (1) of Section
135 of Electricity Act. Further, it is also clear
from Section 154 of the Act, which prescribes
procedure and power of Special Court, that the
Special Court is empowered to convict the consumer
and impose a sentence of imprisonment. The Special
Court, in cases, where a criminal complaint is
lodged, is also empowered to determine civil
liability under Section 154(5) of the Act. As per
Section 154(6) of the Act, in case civil liability so
determined 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, shall be refunded by the licensee or the
concerned person, as the case may be. Merely because
the Special Court is empowered to determine civil
liability under Section 154(5) of the Act, in cases
where a complaint is lodged, it cannot be said that
C.A.@S.L.P(c) No.22207/2018 23
there is no power conferred on authorities to make
provisional assessment/final assessment under Section
126 of the Act.
13. In the case of Executive Engineer Southern
Electricity Supply Company of Orissa Limited
(SOUTHCO) & Another v. Shi. Seetaram Rice Mill,
reported in (2012)2 SCC 108, this Court has
considered the scope of Explanation to Section 126(b)
(iv) of 2003 Act. In the aforesaid case, as there was
no allegation of theft, this Court has held
consumption in excess of sanctioned/contracted load,
comes within the meaning of unauthorized use of
electricity as per Explanation (b)(iv) of Section 126
of Electricity Act, 2003. Drawing a distinction
between Section 126 to that of Section 135 of the
Act, paragraphs 29 and 61 of the aforesaid judgment
read as under:-
“29. Thus, it would be clear that the
expression “unauthorized use of
electricity” under Section 126 of the
2003 Act deals with cases of unauthorized
use, even in the absence of intention.
These cases would certainly be different
from cases where there is dishonest
abstraction of electricity by any of the
methods enlisted under Section 135 of the
2003 Act. A clear example would be, where
a consumer has used excessive load as
against the installed load simpliciter
C.A.@S.L.P(c) No.22207/2018 24
and there is violation of the terms and
conditions of supply, then, the case
would fall under Section 126 of the 2003
Act. On the other hand, where a consumer,
by any of the means and methods as
specified under Sections 135(a) to 135(e)
of the 2003 Act, has abstracted energy
with dishonest intention and without
authorization, like providing for a
direct connection by passing the
installed meter, the case would fall
under Section 135 of the Act.
... ... ... ...
61. Unauthorized use of electricity
cannot be restricted to the stated
clauses under the Explanation but has to
be given a wider meaning so as to cover
cases of violation of the terms and
conditions of supply and the Regulations
and provisions of the 2003 Act governing
such supply. ”Unauthorized use of
electricity” itself is an expression
which would, on its plain reading, take
within its scope all the misuse of the
electricity or even malpractices adopted
while using electricity. It is difficult
to restrict this expression and limit its
application by the categories stated in
the explanation. It is indisputable that
the electricity supply to a consumer is
restricted and controlled by the terms
and conditions of supply, the Regulations
framed and the provisions of the 2003
Act.”
14. 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
unauthorized use of energy by tampering the meter,
the authorities can disconnect the power supply
C.A.@S.L.P(c) No.22207/2018 25
immediately and make immediate assessment for loss of
energy, by invoking power under Section 126(1) of the
Act. The term “unauthorized use of energy” is of
wide connotation. There may be cases of unauthorized
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
authorized etc. But at the same time, when there is
an allegation of unauthorized use of energy by
tampering the meter, such cases of unauthorized 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
C.A.@S.L.P(c) No.22207/2018 26
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.
15. For the aforesaid reasons, this civil appeal is
allowed and the judgment and order dated 18.12.2017
passed by the High Court of Calcutta in F.M.A. No.520
C.A.@S.L.P(c) No.22207/2018 27
of 2017 and the corrected order dated 07.02.2018, are
set aside. No order as to costs.
 .................... J.
 [R. Banumathi]
 .................... J.
 [R. Subhash Reddy]
NEW DELHI,
August 21, 2019

Allegations of illegal intimacy with other women by the wife after successful martial life of 25 years, can be considered as misunderstanding and it can not be considered as mental cruelty for granting divorce -; legal heirs can be added in divorce procedings on the death of spouse .

 Allegations of illegal intimacy with other women by the wife after successful martial life of 25 years, can be considered as misunderstanding and it can not be considered as mental cruelty for granting divorce -; legal heirs can be added in  divorce procedings on the death of  spouse .

the marriage between the parties   had   taken   place   in   the   year   1970   and   the undisputed fact is also that the children of the parties are grown   up   and   the   very   incidents   referred   to   by   the appellant   regarding   the   illegitimate   relationship   were from the point of time when the respondent was posted at Manipur and the appellant herein had shifted there in the year 1991. 
By such time the marital bond was quite mature and with regard to certain incidents where there were  allegations   it   can   only   be   considered   as   a misunderstanding   between   the   parties   which   only required a minor adjustment to reassure each other and iron   out   the   crease.    
Hence,   merely   because   certain issues have been raised with regard to the same, even if it be on a misunderstanding in the instant facts, it cannotbe considered as inflicting mental cruelty in the nature it is required for considering the petition under Section 13 of the Hindu Marriage Act for dissolving the marriage.

NON­REPORTABLE
             
   IN THE SUPREME COURT OF INDIA
   CIVIL APPELLATE JURISDICTION
  CIVIL APPEAL NO. 2021 OF 2010
Ravinder Kaur                 .…Appellant(s)
Versus
Manjeet Singh (Dead) Through Lrs.       ….  Respondent(s)
J U D G M E N T
A.S. Bopanna,J.       
     
1.       The   appellant   herein   is   the   wife   of   the   original
respondent who died during the pendency of this appeal.
Since the order impugned passed by the High Court of
Punjab and Haryana dated 23.08.2006 in F.A.O.No.101­
M  of   1999   had   allowed   the  appeal   and  dissolved   the
marriage, the marital status of the appellant is in issue
notwithstanding the death of respondent.   As such, the
cause of action has continued to subsist and the legal
 C.A.No.2021/2010 Page 1 of 16
representatives namely,  the  daughter and  sons  of  the
deceased   respondent   were   allowed   to   be   brought   on
record by this Court through the order dated 05.09.2014
passed in IA No.3 of 2012.   In that light, the instant
appeal was heard in that backdrop.    In that situation
the reference made during the course of the order to the
respondent   would   in   effect   refer   to   the   original
respondent,   namely   the   deceased   husband   of   the
appellant.
2. The respondent herein instituted the proceedings
in H.M.A. File No.133 of 16.12.1995 through the petition
filed under Section 13 of the Hindu Marriage Act seeking
dissolution   of   the   marriage   which   was   solemnized
between the appellant and respondent during December,
1970 as per the Sikh rites.  As on the date of filing the
petition the parties had spent 25 years of married life and
had be gotten two sons and a daughter from the wedlock,
who were also grown up.  At that stage the petition was
filed by the respondent­husband seeking dissolution of
the marriage alleging mental cruelty inflicted upon him
 C.A.No.2021/2010 Page 2 of 16
by the appellant herein.  The parties herein though had
resided in Ludhiana till 1988, had shifted to Bathinda
thereafter.     When   this   was   the   position,   since   the
respondent   was   serving  in   the   Armed  Forces,  he   was
posted at Nagaland in the year 1989 and was thereafter
posted at Manipur till 1992.  From the pleading as put
forth before the District Court in the petition, the trigger
for the dispute between the parties arose at the point
when the appellant and the children had gone over to
stay with the respondent at Manipur.  According to the
respondent   herein   he   was   suffering   from   gastric   and
related problems and due to his illness, a Punjabi family
of Capt. Inderjit Singh   looked after the petitioner.   In
that circumstance due to the affinity of the family the
said Capt. Inderjit Singh is said to have sent his wife and
children along with the respondent to Bathinda and they
remained   there   while   the   respondent   had   taken
treatment.  Subsequent thereto all of them including the
appellant   and   the   children   had   also   gone   back   to
Manipur.  Though the families were known to each other
in   that   manner,   according   to   the   respondent   the
 C.A.No.2021/2010 Page 3 of 16
appellant   herein   started   levelling   baseless   allegations
against the respondent herein and his father.  The wife of
Capt. Inderjit Singh had conveyed this aspect to Capt.
Inderjit Singh who thereafter told the respondent.   The
said   incident   is   stated   to   have   been   raised   by   the
respondent herein in the presence of the appellant to
clarify   the   situation,   but   the   appellant   herein   started
shouting   at   the   respondent   and   also   alleged   that   the
respondent herein had illegitimate relationship with the
wife of Capt. Inderjit Singh. 
3. The   further   details   which   led   to   the
misunderstanding   between   the   appellant   and   the
respondent is adverted to in the petition filed before the
court below.   The respondent was thereafter posted at
Amritsar and according to the respondent even at that
point whenever the respondent visited Bathinda where
the appellant and two sons were staying, the appellant
again raised the said issue and made false allegations
and also had sent the sons and a friend to keep a watch
over   the   activities   of   the   respondent.     Certain   other
 C.A.No.2021/2010 Page 4 of 16
incidents which had taken place in Amritsar are referred
to in the petition, which need not be elaborated herein.
Apart from the same, the respondent has contended that
the   appellant   had   intentionally   lodged   a   false   report
against the respondent to the S.P.(Operations) Bathinda
due to which a case under Section 107/151 of Cr.PC.
was registered and the father of the respondent as also
the respondent were arrested and the proceedings were
held.  In addition, the appellant herein is stated to have
filed a suit against the respondent seeking declaration
and   permanent   injunction   with   regard   to   the   House
No.22, Kamla Nehru Colony, Bathinda wherein she had
alleged that the respondent had defrauded her.  In that
view the respondent herein had contended in the petition
that   the   said   acts   of   the   appellant   had   amounted   to
mental cruelty and therefore had sought for dissolution of
the marriage. 
4. The appellant herein who was the respondent had
filed   detailed   objections   disputing   the   averments   put
forth by the respondent herein in his petition.  Insofar as
 C.A.No.2021/2010 Page 5 of 16
the   incident   relating   to   House   No.22,   Kamla   Nehru
Colony,   Bathinda   it   was   contended   that   the   plot   was
allotted to the appellant in 1987 and the construction
was put up after obtaining money from the father of the
appellant, after which they were residing along with their
two   sons.     The   appellant   has   further   referred   to   the
nature   of   relationship   the   respondent   herein   was
maintaining   with   Mrs.   Nirmaljit   Kaur   wife   of   Capt.
Inderjit Singh, regarding which she had raised objections
and despite the same they were living in the same room
of   the   house   belonging   to   the   appellant.     Certain
incidents in that regard are referred to in her objection
statement so as to justify her action.   Insofar as the
action initiated by the appellant by lodging a complaint to
the   police,   it   is   contended   that   in   July,   1995   the
respondent along with the relations came to the house of
the appellant, began to attack her, removed the articles
from the house and was forcing her to vacate the house.
It   is   in   that   view   she   had   approached   the   police
authorities pursuant to which the action was taken.  In
that light it was contended by the appellant that the act
 C.A.No.2021/2010 Page 6 of 16
of   the   respondent   herein   in   fact   would   amount   to
inflicting   cruelty   on   the   appellant   herein   and   not   as
alleged by the respondent. 
5. The trial court in that light proceeded to consider
as   to   whether   the   appellant   herein   had   treated   the
respondent with cruelty and as to whether the appellant
had deserted the petitioner for a continuous period of two
years.  While taking note of the same the trial court has
referred to the pleadings of both sides and has taken note
of the nature of allegations that were in fact made by the
respondent­husband   against   the   appellant­wife   by
securing the evidence of the witness Sri Daya Singh as
PW­1, to state that the appellant herein had illegitimate
relations with the driver named Swarna.   To that effect
the plea taken by the respondent about such relationship
when they were residing in Ludhiana has been referred
and the incident was sought to be raised through the
evidence of the said Sri Daya Singh­PW­1.  The trial court
has thereafter referred to the evidence of another witness
on   behalf   of   the   respondent   herein   namely   Col.   M.S.
 C.A.No.2021/2010 Page 7 of 16
Sidhu, a colleague and in that regard having referred to
his   evidence   has   indicated   that   his   evidence   is   not
trustworthy going by the very nature in which he has
referred to every aspect as if he was privy to all matters of
the   family.   In   that   background   the   trial   court   had
thought it fit to rely on the evidence of Pritam Singh who
was examined as RW­1, a resident of Gobindgarh as also
the evidence of Gurudayal who was examined as RW­2. 
6. The incident as stated by the respondent herein as
the   petitioner   before   the   court   below   by   examining
himself as PW­6 was referred and the entire narration
relating   to   relationship   with   Smt.   Nirmaljit   Kaur   was
taken   note.     In   addition   the   trial   court   has   made   a
detailed reference to the evidence of the other witness
who had been examined before it, the details of which
need not be adverted to herein.  However, it is seen that
the trial court on such basis had taken note that the
entire issue revolves around the allegations said to have
been made by the appellant against the respondent by
calling the relationship as an illegitimate affair.  To that
 C.A.No.2021/2010 Page 8 of 16
extent the evidence of one of the sons of the parties Shri
Iqbaal Singh who was examined as RW­6 was taken note,
wherein he has stated that the respondent herein and the
said Smt.Nirmaljit Kaur were behaving like husband and
wife.  Insofar as the incident relating to the house which
had resulted in filing the complaint with the police under
Section 107/151 of Cr.PC it was taken note that the
appellant had to take recourse to such proceedings to
protect her right.   In that light the trial court having
assessed the totality of the facts and circumstances and
also   having   taken   note   about   the   allegations   of
illegitimate affair made by the respondent herein against
the appellant by introducing the name of a person who
did not exist, was of the view that in the existing state of
affairs the incidents as stated by the respondent cannot
be treated as a ground to dissolve the marriage on the
allegations of mental cruelty.  Hence, the trial court has
dismissed the petition.
7. In the appeal filed by the respondent herein before
the High Court, as rightly pointed out by the learned
 C.A.No.2021/2010 Page 9 of 16
counsel for the appellant herein the High Court in fact,
has     proceeded   in   the   matter   with   the   preconceived
notion that the marriage is irretrievably broken down and
that the dispute is between a couple who have grown up
married children, which has influenced its decision.  In
fact, the High Court while finding fault with the judgment
of the trial court has taken exception to the observations
made by the trial court that the parties were living a
happy married life till the third lady intruded in the life of
the appellant and spoiled the whole family atmosphere.
In that regard it is commented by the High Court that the
trial court has not appreciated the allegations made by
the   respondent   herein   regarding   the   illegitimate
relationship   of   the   appellant­wife   with   the   so­called
driver.   The High Court has further observed that it is
noticeable that the appellant had not sought divorce on
the ground of appellant­wife having illegitimate relations
with the driver, but this fact has been mentioned in the
petition, which would indicate that the respondent had
condoned.  Having taken note of such observations made
by the High Court it gives the impression that the High
 C.A.No.2021/2010 Page 10 of 16
Court has proceeded on the footing as if the allegations
made by the respondent husband against the appellant
wife had been proved before the trial court. 
8. In a proceeding of the present nature when the
respondent herein was contending that the allegations of
illegitimate   relationship   being   made   against   him   had
amounted to mental cruelty and in a situation where the
existence of Smt. Nirmaljit Kaur was not a fiction but
there were two versions to the nature of relationship,  the
same cannot be weighed in the same scale when the
allegations against the appellant­wife was made by the
respondent   about   a   non­existent   person.     If   the
respondent­husband is to contend that the allegations of
illegitimate relations made against him has amounted to
mental cruelty, in fact as rightly observed by the trial
court,   the   bald   allegations   made   by   the   respondent
against   the   appellant­wife   would   also   amount   to   the
same.  If that be the position insofar as the allegations to
that  effect, the trial court had in fact referred to the
evidence in detail and has arrived at the conclusion that
 C.A.No.2021/2010 Page 11 of 16
the  ground  of  mental  cruelty  in  that  regard so  as  to
dissolve the marriage cannot be accepted. 
9. Insofar as the action taken by the appellant herein
to file a police complaint and the proceedings initiated
under Section 107/151 of Cr.PC it is the natural legal
course adopted by respondent to protect her right and
possession of the property.  It is not in dispute that at the
point when a complaint was filed and a suit was also
stated   to   have   been   filed   by   the   appellant   herein   on
05.09.1995 there was misunderstanding brewing in the
marital life of the parties and in that circumstance the
appellant herein had adopted the legal course to protect
her rights.   Such action taken in accordance with law
cannot, in any event, be considered as inflicting cruelty
as   the   legal   proceedings   was   used   only   as   a   shield
against the assault.   In this regard the decision of this
Court in the case of Ramchander vs. Ananta (2015) 11
SCC   539   relied   on   by   the   learned   counsel   for   the
appellant would be relevant, wherein while taking note of
similar   instances   this   Court   has   held   that   the   same
 C.A.No.2021/2010 Page 12 of 16
would not amount to cruelty and such instances would
not be convincing enough to lead to a conclusion that the
marriage is irretrievably broken down.
10. In   the   above   background,   keeping   in   view   the
nature of allegations made and the evidence tendered in
that regard, we find that the consideration made by the
trial court with reference to the reliability of the evidence
is more appropriate.  As already noticed the High Court,
while taking note of the nature of allegations made has
proceeded   on   the   basis   that   there   is   irretrievable
breakdown of the marriage.   Needless to mention that
irretrievable   breakdown   of   marriage   by   itself   is   not   a
ground provided under the statute for seeking dissolution
of marriage.  To this effect it would be apposite to refer to
the decision rendered by this Court to that effect in the
case of Vishnu Dutt Sharma vs. Manju Sharma (2009)
6 SCC 379 relied upon by the learned counsel for the
appellant.  No doubt on taking note of the entire material
and evidence available on record, in appropriate cases
the courts may have to bring to an end, the marriage so
 C.A.No.2021/2010 Page 13 of 16
as not to prolong the agony of the parties.  However, in
the present facts, at this point in time even that situation
does not arise in view of the changed scenario on the
death of the respondent herein.
11. As already taken note, the marriage between the
parties   had   taken   place   in   the   year   1970   and   the
undisputed fact is also that the children of the parties are
grown   up   and   the   very   incidents   referred   to   by   the
appellant   regarding   the   illegitimate   relationship   were
from the point of time when the respondent was posted at
Manipur and the appellant herein had shifted there in
the year 1991.  By such time the marital bond was quite
mature and with regard to certain incidents where there
were   allegations   it   can   only   be   considered   as   a
misunderstanding   between   the   parties   which   only
required a minor adjustment to reassure each other and
iron   out   the   crease.     Hence,   merely   because   certain
issues have been raised with regard to the same, even if it
be on a misunderstanding in the instant facts, it cannot
be considered as inflicting mental cruelty in the nature it
 C.A.No.2021/2010 Page 14 of 16
is required for considering the petition under Section 13
of the Hindu Marriage Act for dissolving the marriage.
Though the learned counsel representing the respondents
referred   to   the   incidents   by   which   the   appellant   had
hurled false allegations against the respondent, presently
when the respondent has died and in a circumstance
where one of the legal representatives, namely Shri Iqbbal
Singh was examined as RW­6 in support of the case of
the appellant herein and the legal representatives No.1
and 3, though were majors had not been examined in the
proceedings, any contention raised on their behalf would
not   be   of   any   assistance   to   take   any   other   view.
Therefore, if all these aspects are kept in perspective, we
are of the view that the High Court was not justified in
reversing   the   well­considered   judgment   passed   by   the
trial court.
12. Accordingly,   the   judgment   dated   23.08.2006
passed in F.A.O. No.101­M/1999 is set aside and the
judgment dated 08.04.1999 passed in H.M.A. File No.133
of 16.12.1995 by the Additional District Judge, Bathinda
 C.A.No.2021/2010 Page 15 of 16
is restored.  The instant appeal is allowed with no order
as to costs.  All pending applications also stand disposed
of.
…………………….….J.
(R. BANUMATHI)
……………………….J.
                                              (A.S. BOPANNA)
New Delhi,
August 21, 2019
 C.A.No.2021/2010 Page 16 of 16

Quashing of FIR = Sections 376, 417, 504 and 506(2) of the Indian Penal Code3 and Sections 3(1) (u), (w) and 3(2) (vii) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989 (as amended by the Amendment Act, 2015) - There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant’s failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false - No offence was made out and Mere whatsapp message what ever it may be does not attaract the provisions of St & Sc Act.

Quashing of FIR = Sections 376, 417, 504 and 506(2) of the Indian Penal Code3 and Sections 3(1) (u), (w) and 3(2) (vii) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989 (as amended by the Amendment Act, 2015) - There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant’s failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false - No offence was made out and 

Mere whatsapp message what ever it may be does not attaract the provisions of St & Sc Act.

whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to
marry, two propositions must be established. 
The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate
relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.

19 The allegations in the FIR indicate that in November 2009 the complainant
initially refused to engage in sexual relations with the accused, but on the
promise of marriage, he established sexual relations. However, the FIR includes
a reference to several other allegations that are relevant for the present purpose.
They are as follows:
(i) The complainant and the appellant knew each other since 1998 and
were intimate since 2004;
(ii) The complainant and the appellant met regularly, travelled great
distances to meet each other, resided in each other’s houses on
multiple occasions, engaged in sexual intercourse regularly over a
course of five years and on multiple occasions visited the hospital
jointly to check whether the complainant was pregnant; and
(iii) The appellant expressed his reservations about marrying the
complainant on 31 January 2014. This led to arguments between
them. Despite this, the appellant and the complainant continued to
engage in sexual intercourse until March 2015.
The appellant is a Deputy Commandant in the CRPF while the complainant is an
Assistant Commissioner of Sales Tax.
20 The allegations in the FIR do not on their face indicate that the promise by
the appellant was false, or that the complainant engaged in sexual relations on
the basis of this promise. There is no allegation in the FIR that when the 
appellant promised to marry the complainant, it was done in bad faith or with the
intention to deceive her. The appellant’s failure in 2016 to fulfil his promise made
in 2008 cannot be construed to mean the promise itself was false. The
allegations in the FIR indicate that the complainant was aware that there existed
obstacles to marrying the appellant since 2008, and that she and the appellant
continued to engage in sexual relations long after their getting married had
become a disputed matter. Even thereafter, the complainant travelled to visit and
reside with the appellant at his postings and allowed him to spend his weekends
at her residence. The allegations in the FIR belie the case that she was deceived
by the appellant’s promise of marriage. Therefore, even if the facts set out in the
complainant’s statements are accepted in totality, no offence under Section 375
of the IPC has occurred.


21 With respect to the offences under the SC/ST Act, the WhatsApp
messages were alleged to have been sent by the appellant to the complainant on
27 and 28 August 2015 and 22 October 2015. At this time, Sections 3(1) (u), (w)
and 3(2) (vii) of the SC/ST Act as it stands today had not been enacted into the
statute. These provisions were inserted by the (Prevention of Atrocities)
Amendment Act 201513 which came into force on 26 January 2016. Prior to the
Amending Act, the relevant provisions of the statute (as it stood then) were as
follows:
“3. (1) Whoever, not being a member of a Scheduled Caste or
a Scheduled Tribe. –

13 “Amending Act”
18
…
(x) intentionally insults or intimidates with intent to humiliate a
member of a Schedule Caste or a Scheduled Tribe in any
place within public view;
(xi) assaults or uses force to any woman belonging to a
Schedule Caste or a Scheduled Tribe with intent to dishonour
or outrage her modesty;
(xii) being in a position to dominate the will of a woman
belonging to a Scheduled Caste or a Scheduled Tribe and
uses that position to exploit her sexually to which she would
not have otherwise agreed; …”
22 Without entering into a detailed analysis of the content of the WhatsApp
messages sent by the appellant and the words alleged to have been spoken, it is
apparent that none of the offences set out above are made out. The messages
were not in public view, no assault occurred, nor was the appellant in such a
position so as to dominate the will of the complainant. Therefore, even if the
allegations set out by the complainant with respect to the WhatsApp messages
and words uttered are accepted on their face, no offence is made out under
SC/ST Act (as it then stood). The allegations on the face of the FIR do not hence
establish the commission of the offences alleged.



1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 1165 of 2019
(@SLP (Crl) No. 2712 of 2019)
Pramod Suryabhan Pawar …Appellant
 Versus
The State of Maharashtra & Anr. …Respondents
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
1. Leave granted.
2. By its judgement dated 7 February 2019, the High Court of Judicature at
Bombay dismissed an application under Section 482 of the Code of Criminal
Procedure 19731
. The appellant sought the quashing of a First Information
Report2
registered against him on 17 May 2016 with the Panvel City Police
Station for offences punishable under Sections 376, 417, 504 and 506(2) of the
Indian Penal Code3
and Sections 3(1) (u), (w) and 3(2) (vii) of The Scheduled

1
“CrPC”
2
“FIR”
3
“IPC”
2
Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989 (as amended by
the Amendment Act, 2015)4
. The second respondent is the complainant.
3. The allegations in the FIR are summarised thus:
(i) According to the complainant, she and the appellant have known
each other since 1998. She would speak to the appellant on the phone and
met him regularly as early as 2004. In 2008 the appellant proposed
marriage and assured her that their belonging to different castes would not
be a hindrance. The appellant allegedly promised to marry the complainant
after the marriage of his elder sister. On 23 January 2009 the appellant
allegedly re-iterated his promise to marry her at the Patnadevi Temple in
Chalisgaon;
(ii) The complainant completed her B.Sc. in Agriculture in 2002 and
worked as a Junior Research Assistant. In 2007 she was selected as a Naib
Tahsildar at Chalisgaon. In March 2009 she was appointed to the post of
Assistant Sales Tax Commissioner at Mazgaon. The appellant would, it is
alleged, come to meet her and lived with her in November 2009. During his
visit, the complainant alleges that she refused to engage in sexual
intercourse with the appellant, but “on the promise of marriage he forcibly
established corporeal relationships”;
(iii) The complainant alleges that throughout 2010, the appellant visited
her on multiple occasions and they engaged in sexual intercourse. When

4
“SC/ST Act”
3
the appellant was posted in Gadchiroli, the complainant visited the appellant
multiple times over the course of 2011. Each of these visits lasted four to
five days during which the complainant resided with the appellant and they
engaged in sexual intercourse. During these visits the complainant enquired
about marriage and the appellant responded in the affirmative. In
December 2011 the appellant visited her and resided in her house for four
days;
(iv) The appellant’s elder sister was married on 5 February 2012. On 23
December 2012 the appellant visited her and forced her to engage in sexual
intercourse. Afterwards, for the first time the appellant raised concerns
about marrying her on the ground that their belonging to different castes
would hinder the appellant’s younger sister’s marriage. In January 2013 the
complainant visited the appellant in Nagpur, and the appellant also
subsequently visited her. On both occasions they engaged in sexual
intercourse;
(v) During these years she missed her menstrual periods on several
occasions. In 2013-14 the complainant and appellant jointly visited the
hospital multiple times to check whether she was pregnant. In June 2013
the appellant was posted in Navi Mumbai and used to spend his weekends
residing at the complainant’s house. They regularly engaged in sexual
intercourse during this period. Beginning in January 2014 the appellant
raised concerns about marrying the complainant on the ground of her caste.
This led to heated arguments. However, the appellant used to regularly visit
4
her house at Panvel until March 2015, each time engaging in sexual
intercourse with her;
(vi) On 27 and 28 August 2015 and 22 October of 2015 the appellant
sent the complainant certain WhatsApp messages. The complainant
alleges that these messages were insulting and attacked her on the grounds
of her caste. The messages stated:
“You are bad for society. If shoe is kept on head, then head would
get dirty. Reservation did not add any intelligence; You have got Govt.
service with ease”.
(vii) In November 2015 for the first time the complainant threatened to
file a police complaint against the appellant. The appellant promised to
marry her after the marriage of his brother. At this time also they engaged
in sexual intercourse; and
(viii) On 9 March 2016 the appellant engaged in sexual intercourse with
the complainant against her will. Subsequently, the complainant was
apprised of the fact that the appellant was engaged to another woman. The
appellant informed the complainant that the woman he was engaged to was
demanding Rs. two lakhs to break of the engagement. On 28 March 2016
the appellant re-iterated his promise to marry the complainant and arranged
for her to speak to the woman he had been engaged to, to assure the
complainant that the appellant was no longer in a relationship with her.
Subsequently the complainant became aware that the appellant had married
on 1 May 2016. On 17 May 2016 she filed the FIR.
5
4 The appellant applied for anticipatory bail. By an order dated 13 June 2016
he was granted ad-interim anticipatory bail. The order dated 13 June 2016 was
confirmed by the High Court of Bombay on 1 July 2016.
5 In Criminal Application No. 813 of 2016, the appellant moved the High
Court under Section 482 of the CrPC to quash the FIR dated 17 May 2016. By
its order dated 7 February 2019 the High Court rejected the application, noting:
“3. Though the relationship was with consent, it appears
that there was a promise to marry and statement shows that
later on, giving reason of caste of Complainant, promise
was not kept.
4. In view of this prima facie situation, we are not inclined to
intervene in extra ordinary jurisdiction. We make it clear that
our observations are only for the purposes of refusing to
entertain the grievance in extra ordinary jurisdiction and we
have not recorded any finding either way on contentions.”
6 Mr Sushil Karanjkar, learned counsel for the appellant contends that in
refusing to quash the FIR the High Court failed to distinguish between rape and
consensual sex. It is submitted that the allegations on the face of the FIR
indicate that the physical relationship between the appellant and the complainant
existed for over a period of six years with her consent as evidenced by multiple
periods of co-habitation, visits, and lack of resistance or complaint by the
complainant. Against this, Mr Katneshwarkar, learned counsel appearing for the
respondent-State as well as Mr Nilesh Tribhavan, learned counsel for the
complainant relied upon certain decisions of this Court. In her counter affidavit,
the complainant has submitted:
6
“i. It is submitted that the Petitioner has resorted forming
a relationship with me only in order to fulfil his lust.
ii. It is submitted that the Petitioner promised to marry
me and then manipulated me emotionally and mentally to
have physical relations with him, even when he was well
aware that such actions of his have caused me immense
physical and mental suffrage.
iii. It is submitted that the Petitioner promised me
matrimony only so that he could maintain a physical relation
and would not have to face the hassle of having to find
multiple women and establish physical relations with each
one of them as his job was of a transferable nature and
meeting multiple women to fulfil his luscious behaviour was
not possible.
iv. It is submitted that the Petitioner from the start had ill
and misconstrued notions about people belonging from
SC/ST caste which he pretended to be absent of throughout
the relationship and lied about but was unable to hold back
when he was pressurized and put in a corner.”
Learned counsel referred to the submissions which have been set out in the
counter affidavit, during the course of the hearing.
7 Section 482 is an overriding section which saves the inherent powers of
the court to advance the cause of justice. Under Section 482 the inherent
jurisdiction of the court can be exercised (i) to give effect to an order under the
CrPC; (ii) to prevent the abuse of the process of the court; and (iii) to otherwise
secure the ends of justice. The powers of the court under Section 482 are wide
and the court is vested with a significant amount of discretion to decide whether
or not to exercise them. The court should be guarded in the use of its
extraordinary jurisdiction to quash an FIR or criminal proceeding as it denies the
prosecution the opportunity to establish its case through investigation and
evidence. These principles have been consistently followed and re-iterated by
7
this Court. In Inder Mohan Goswami v State of Uttaranchal5
, this Court
observed.
“23. This Court in a number of cases has laid down the
scope and ambit of courts’ powers under Section 482
CrPC. Every High Court has inherent powers to act ex
debito justitiae to do real and substantial justice, for the
administration of which alone it exists, or to prevent abuse
of the process of the court. Inherent power under Section
482 CrPC can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of the court,
and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under Section 482 CrPC though wide
have to be exercised sparingly, carefully and with great
caution and only when exercise is justified by the tests
specifically laid down in this section itself. Authority of the
court exists for the advancement of justice. If any abuse of
the process leading to injustice is brought to the notice of
the court, then the court would be justified in preventing
injustice by invoking inherent powers in absence of specific
provisions in the statute.”
8 Given the varied nature of cases that come before the High Courts, any
strict test as to when the court’s extraordinary powers can be exercised is likely to
tie the court’s hands in the face of future injustices. This Court in State of
Haryana v Bhajan Lal6
conducted a detailed study of the situations where the
court may exercise its extraordinary jurisdiction and laid down a list of illustrative
examples of where quashing may be appropriate. It is not necessary to discuss
all the examples, but a few bear relevance to the present case. The court in
Bhajan Lal noted that quashing may be appropriate where,

5
(2007) 12 SCC 1
6
1992 Supp (1) SCC 335
8
“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).
…
(7) Where a criminal proceeding is manifestly attended with
mala fide 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.”
In deciding whether to exercise its jurisdiction under Section 482, the Court does not
adjudicate upon the veracity of the facts alleged or enter into an appreciation of
competing evidence presented. The limited question is whether on the face of the
FIR, the allegations constitute a cognizable offence. As this Court noted in
Dhruvaram Murlidhar Sonar v State of Maharashtra,
7
(“Dhruvaram Sonar”) :
“13. It is clear that for quashing proceedings, meticulous
analysis of factum of taking cognizance of an offence by the
Magistrate is not called for. Appreciation of evidence is also
not permissible in exercise of inherent powers. If the
allegations set out in the complaint do not constitute the
offence of which cognizance has been taken, it is open to
the High Court to quash the same in exercise of its inherent
powers.”
9 The present proceedings concern an FIR registered against the appellant
under Sections 376, 417, 504, and 506(2) of the IPC and Sections 3(1) (u), (w) and
3(2) (vii) of SC/ST Act. Section 376 of the IPC prescribes the punishment for the

7
2018 SCC OnLine SC 3100
9
offence of rape which is set out in Section 375. Section 375 prescribes seven
descriptions of how the offence of rape may be committed. For the present
purposes only the second such description, along with Section 90 of the IPC is
relevant and is set out below.
“375. Rape – A man is said to commit “rape” if he –
…
under the circumstances falling under any of the following
seven descriptionsFirstly …
Secondly. – Without her consent.
…
Explanation 2. – Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any
form of verbal or non-verbal communication,
communicates willingness to participate in the specific
sexual act:
Provided that a woman who does not physically resist to
the act of penetration shall not by the reason only of that
fact, be regarded as consenting to the sexual activity.”
“90. Consent known to be given under fear or
misconception - A consent is not such a consent as is
intended by any section of this Code, if the consent is
given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act
knows, or has reason to believe, that the consent was
given in consequence of such fear or misconception; or…”
10 Where a woman does not “consent” to the sexual acts described in the
main body of Section 375, the offence of rape has occurred. While Section 90 
10
does not define the term “consent”, a “consent” based on a “misconception of
fact” is not consent in the eyes of the law.
11 The primary contention advanced by the complainant is that the appellant
engaged in sexual relations with her on the false promise of marrying her, and
therefore her “consent”, being premised on a “misconception of fact” (the promise
to marry), stands vitiated.
12 This Court has repeatedly held that consent with respect to Section 375 of
the IPC involves an active understanding of the circumstances, actions and
consequences of the proposed act. An individual who makes a reasoned choice
to act after evaluating various alternative actions (or inaction) as well as the
various possible consequences flowing from such action or inaction, consents to
such action. In Dhruvaram Sonar which was a case involving the invoking of the
jurisdiction under Section 482, this Court observed:
“15. … An inference as to consent can be drawn if only based
on evidence or probabilities of the case. “Consent” is also
stated to be an act of reason coupled with deliberation. It
denotes an active will in mind of a person to permit the doing
of the act complained of.”
This understanding was also emphasised in the decision of this Court in Kaini
Rajan v State of Kerala8
:
“12. … “Consent”, for the purpose of Section 375, requires
voluntary participation not only after the exercise of
intelligence based on the knowledge of the significance of the
moral quality of the act but after having fully exercised the
choice between resistance and asset. Whether there was

8
(2013) 9 SCC 113
11
consent or not, is to be ascertained only on a careful study of
all relevant circumstances.”
13 This understanding of consent has also been set out in Explanation 2 of
Section 375 (reproduced above). Section 3(1) (w) of the SC/ST Act also
incorporates this concept of consent:
“3(1) (w) -
(i) intentionally touches a woman belonging to a Scheduled
Caste or a Scheduled Tribe, knowing that she belongs to a
Scheduled Caste or a Scheduled Tribe, when such act of
touching is of a sexual nature and is without the recipient’s
consent;
…
Explanation.––For the purposes of sub-clause (i), the
expression “consent” means an unequivocal voluntary
agreement when the person by words, gestures, or any form
of non-verbal communication, communicates willingness to
participate in the specific act:
Provided that a woman belonging to a Scheduled Caste or a
Scheduled Tribe who does not offer physical resistance to
any act of a sexual nature is not by reason only of that fact, is
to be regarded as consenting to the sexual activity:
Provided further that a woman’s sexual history, including with
the offender shall not imply consent or mitigate the offence;”
14 In the present case, the “misconception of fact” alleged by the complainant
is the appellant’s promise to marry her. Specifically in the context of a promise to
marry, this Court has observed that there is a distinction between a false promise
given on the understanding by the maker that it will be broken, and the breach of 
12
a promise which is made in good faith but subsequently not fulfilled. In Anurag
Soni v State of Chhattisgarh9
, this Court held:
“37. The sum and substance of the aforesaid decisions would
be that if it is established and proved that from the inception
the accused who gave the promise to the prosecutrix to
marry, did not have any intention to marry and the prosecutrix
gave the consent for sexual intercourse on such an
assurance by the accused that he would marry her, such a
consent can be said to be a consent obtained on a
misconception of fact as per Section 90 of the IPC and, in
such a case, such a consent would not excuse the offender
and such an offender can be said to have committed the rape
as defined under Sections 375 of the IPC and can be
convicted for the offence under Section 376 of the IPC.”
Similar observations were made by this Court in Deepak Gulati v State of
Haryana10 (“Deepak Gulati”):
“21. … There is a distinction between the mere breach of a
promise, and not fulfilling a false promise. Thus, the court
must examine whether there was made, at an early stage a
false promise of marriage by the accused…”
15 In Yedla Srinivasa Rao v State of Andhra Pradesh11 the accused
forcibly established sexual relations with the complainant. When she asked the
accused why he had spoiled her life, he promised to marry her. On this premise,
the accused repeatedly had sexual intercourse with the complainant. When the
complainant became pregnant, the accused refused to marry her. When the
matter was brought to the panchayat, the accused admitted to having had sexual
intercourse with the complainant but subsequently absconded. Given this factual
background, the court observed:

9
(2019) SCC OnLine SC 509
10 (2013) 7 SCC 675
11 (2006) 11 SCC 615
13
“10. It appears that the intention of the accused as per the
testimony of PW 1 was, right from the beginning, not honest
and he kept on promising that he will marry her, till she
became pregnant. This kind of consent obtained by the
accused cannot be said to be any consent because she was
under a misconception of fact that the accused intends to
marry her, therefore, she had submitted to sexual intercourse
with him. This fact is also admitted by the accused that he
had committed sexual intercourse which is apparent from the
testimony of PWs 1, 2 and 3 and before the panchayat of
elders of the village. It is more than clear that the accused
made a false promise that he would marry her. Therefore, the
intention of the accused right from the beginning was not
bona fide and the poor girl submitted to the lust of the
accused, completely being misled by the accused who held
out the promise for marriage. This kind of consent taken by
the accused with clear intention not to fulfil the promise and
persuading the girl to believe that he is going to marry her
and obtained her consent for the sexual intercourse under
total misconception, cannot be treated to be a consent….”
16 Where the promise to marry is false and the intention of the maker at the
time of making the promise itself was not to abide by it but to deceive the woman
to convince her to engage in sexual relations, there is a “misconception of fact”
that vitiates the woman’s “consent”. On the other hand, a breach of a promise
cannot be said to be a false promise. To establish a false promise, the maker of
the promise should have had no intention of upholding his word at the time of
giving it. The “consent” of a woman under Section 375 is vitiated on the ground of
a “misconception of fact” where such misconception was the basis for her
choosing to engage in the said act. In Deepak Gulati this Court observed:
“21. … There is a distinction between the mere breach of a
promise, and not fulfilling a false promise. Thus, the court
must examine whether there was made, at an early stage a
false promise of marriage by the accused; and whether the
consent involved was given after wholly understanding
the nature and consequences of sexual indulgence.
There may be a case where the prosecutrix agrees to
have sexual intercourse on account of her love and
passion for the accused, and not solely on account of 
14
misrepresentation made to her by the accused, or where
an accused on account of circumstances which he could not
have foreseen, or which were beyond his control, was unable
to marry her, despite having every intention to do so. Such
cases must be treated differently.
…
24. Hence, it is evident that there must be adequate evidence
to show that at the relevant time i.e. at the initial stage itself,
the accused had no intention whatsoever, of keeping his
promise to marry the victim. There may, of course, be
circumstances, when a person having the best of intentions is
unable to marry the victim owing to various unavoidable
circumstances. The “failure to keep a promise made with
respect to a future uncertain date, due to reasons that are not
very clear from the evidence available, does not always
amount to misconception of fact. In order to come within
the meaning of the term “misconception of fact”, the fact
must have an immediate relevance”. Section 90 IPC
cannot be called into aid in such a situation, to pardon the act
of a girl in entirety, and fasten criminal liability on the other,
unless the court is assured of the fact that from the very
beginning, the accused had never really intended to marry
her.”
(Emphasis supplied)
17 In Uday v State of Karnataka12 the complainant was a college going
student when the accused promised to marry her. In the complainant’s
statement, she admitted that she was aware that there would be significant
opposition from both the complainant’s and accused’s families to the proposed
marriage. She engaged in sexual intercourse with the accused but nonetheless
kept the relationship secret from her family. The court observed that in these
circumstances the accused’s promise to marry the complainant was not of
immediate relevance to the complainant’s decision to engage in sexual
intercourse with the accused, which was motivated by other factors:

12 (2003) 4 SCC 46
15
“25. There is yet another difficulty which faces the prosecution in this
case. In a case of this nature two conditions must be fulfilled for the
application of Section 90 IPC. Firstly, it must be shown that the
consent was given under a misconception of fact. Secondly, it
must be proved that the person who obtained the consent knew,
or had reason to believe that the consent was given in
consequence of such misconception. We have serious doubts
that the promise to marry induced the prosecutrix to consent to
having sexual intercourse with the appellant. She knew, as we
have observed earlier, that her marriage with the appellant was
difficult on account of caste considerations. The proposal was bound
to meet with stiff opposition from members of both families. There
was therefore a distinct possibility, of which she was clearly
conscious, that the marriage may not take place at all despite the
promise of the appellant. The question still remains whether even
if it were so, the appellant knew, or had reason to believe, that
the prosecutrix had consented to having sexual intercourse with
him only as a consequence of her belief, based on his promise,
that they will get married in due course. There is hardly any
evidence to prove this fact. On the contrary, the circumstances of
the case tend to support the conclusion that the appellant had reason
to believe that the consent given by the prosecutrix was the result of
their deep love for each other. It is not disputed that they were deeply
in love. They met often, and it does appear that the prosecutrix
permitted him liberties which, if at all, are permitted only to a
person with whom one is in deep love. It is also not without
significance that the prosecutrix stealthily went out with the appellant
to a lonely place at 12 o'clock in the night. It usually happens in such
cases, when two young persons are madly in love, that they promise
to each other several times that come what may, they will get
married…”
(Emphasis supplied)
18 To summarise the legal position that emerges from the above cases, the
“consent” of a woman with respect to Section 375 must involve an active and
reasoned deliberation towards the proposed act. To establish whether the
“consent” was vitiated by a “misconception of fact” arising out of a promise to
marry, two propositions must be established. The promise of marriage must
have been a false promise, given in bad faith and with no intention of being
adhered to at the time it was given. The false promise itself must be of immediate
relevance, or bear a direct nexus to the woman’s decision to engage in the
sexual act.
16
19 The allegations in the FIR indicate that in November 2009 the complainant
initially refused to engage in sexual relations with the accused, but on the
promise of marriage, he established sexual relations. However, the FIR includes
a reference to several other allegations that are relevant for the present purpose.
They are as follows:
(i) The complainant and the appellant knew each other since 1998 and
were intimate since 2004;
(ii) The complainant and the appellant met regularly, travelled great
distances to meet each other, resided in each other’s houses on
multiple occasions, engaged in sexual intercourse regularly over a
course of five years and on multiple occasions visited the hospital
jointly to check whether the complainant was pregnant; and
(iii) The appellant expressed his reservations about marrying the
complainant on 31 January 2014. This led to arguments between
them. Despite this, the appellant and the complainant continued to
engage in sexual intercourse until March 2015.
The appellant is a Deputy Commandant in the CRPF while the complainant is an
Assistant Commissioner of Sales Tax.
20 The allegations in the FIR do not on their face indicate that the promise by
the appellant was false, or that the complainant engaged in sexual relations on
the basis of this promise. There is no allegation in the FIR that when the 
17
appellant promised to marry the complainant, it was done in bad faith or with the
intention to deceive her. The appellant’s failure in 2016 to fulfil his promise made
in 2008 cannot be construed to mean the promise itself was false. The
allegations in the FIR indicate that the complainant was aware that there existed
obstacles to marrying the appellant since 2008, and that she and the appellant
continued to engage in sexual relations long after their getting married had
become a disputed matter. Even thereafter, the complainant travelled to visit and
reside with the appellant at his postings and allowed him to spend his weekends
at her residence. The allegations in the FIR belie the case that she was deceived
by the appellant’s promise of marriage. Therefore, even if the facts set out in the
complainant’s statements are accepted in totality, no offence under Section 375
of the IPC has occurred.
21 With respect to the offences under the SC/ST Act, the WhatsApp
messages were alleged to have been sent by the appellant to the complainant on
27 and 28 August 2015 and 22 October 2015. At this time, Sections 3(1) (u), (w)
and 3(2) (vii) of the SC/ST Act as it stands today had not been enacted into the
statute. These provisions were inserted by the (Prevention of Atrocities)
Amendment Act 201513 which came into force on 26 January 2016. Prior to the
Amending Act, the relevant provisions of the statute (as it stood then) were as
follows:
“3. (1) Whoever, not being a member of a Scheduled Caste or
a Scheduled Tribe. –

13 “Amending Act”
18
…
(x) intentionally insults or intimidates with intent to humiliate a
member of a Schedule Caste or a Scheduled Tribe in any
place within public view;
(xi) assaults or uses force to any woman belonging to a
Schedule Caste or a Scheduled Tribe with intent to dishonour
or outrage her modesty;
(xii) being in a position to dominate the will of a woman
belonging to a Scheduled Caste or a Scheduled Tribe and
uses that position to exploit her sexually to which she would
not have otherwise agreed; …”
22 Without entering into a detailed analysis of the content of the WhatsApp
messages sent by the appellant and the words alleged to have been spoken, it is
apparent that none of the offences set out above are made out. The messages
were not in public view, no assault occurred, nor was the appellant in such a
position so as to dominate the will of the complainant. Therefore, even if the
allegations set out by the complainant with respect to the WhatsApp messages
and words uttered are accepted on their face, no offence is made out under
SC/ST Act (as it then stood). The allegations on the face of the FIR do not hence
establish the commission of the offences alleged.
19
23 For the above reasons, we allow the appeal and set aside the impugned
judgement and order of the High Court dated 7 February 2019. The FIR dated 17
May 2016 is quashed.
 …….……..…...…...….....………........J.
 [Dr Dhananjaya Y Chandrachud]
…..…....…..…....…........…….…........J.
 [Indira Banerjee]
New Delhi;
August 21, 2019.