Electricity Act 2003 sec.151 and amended sections sec.151 A, 151 B and Electricity -Rules, 2005, Rules 9 and 12 - Police complaint before police against accused by Asst.Eng. for electricity theft prior to amendment - challenged on the ground that A.E. is not competent to file complaint before police and complaint was to be filed only before court by competent authority as per rule 9 - Special court allowed - High court reversed the same basing on amended Act also - Apex court held that the amendment is only clarification one in nature and not against the previous law- so it can be applied and also held that as per Rule 12 and as per Cr.P.C. - police himself has got original rights to registered F.I.R. on theft whether it is electricity or other thing under Cr.P.C. , Apex court A.E. complaint is valid and investigation is also valid - and dismissed the appeal =
whether the
amendment in Section 151of the Electricity Act, 2003 (hereinafter
referred to as the Act] which empowers the Court to take cognizance of
an offence upon a report made by the police under Section 173 of the (Code of
Criminal Procedure)Code of Civil Procedure [hereinafter referred to as the Code], would be
applicable to the pending complaints filed before the aforesaid
amendment.=
In view thereof, we are of the opinion that the
respondent's Counsel is right in his submission that
if the offence
under the Code is cognizable, provisions of Chapter XII containing
Section 154 Cr.P.C. and onward would become applicable and it would be
the duty of the police to register the FIR and investigate into the
same. Sections 135 and 138 only prescribe that certain acts relating to
theft of electricity etc. would also be offences. It also enables
certain persons/parties, as mentioned in Section 151, to become
complainant in such cases and file complaint before a Court in writing.
When such a complaint is filed, the Court would be competent to take
cognizance straightway. However, that would not mean that other avenues
for investigation into the offence which are available would be
excluded. It is more so when no such special procedure for trying the
offences under the Electricity Act is formulated and the cases under
this Act are also to be governed by the Code of Criminal Procedure.
24. In this backdrop, the notification dated 8.6.2005 issued by the
Central Government in exercise of powers under Section 176 of the
Electricity Act also requires a mention. Vide this notification the
Electricity Rules, 2005, have been framed and Rule 12, which is
relevant, reads as under:
12 (1) The police shall take cognizance of the offence
punishable under the Act on a complaint in writing made to
the police by the Appropriate Government or the Appropriate
Commission or any of their officer authorized by them in
this regard or a Chief Electrical Inspector or an Electrical
Inspector or an authorized officer of Licensee or a
Generating Company, as the case may be.
2) The police shall investigate the complaint in accordance with
the general law applicable to the investigation of any
complaint. For the purposes of investigation of the complaint,
the police shall have at the powers as available under the Code
of Criminal Procedure, 1973.
(3) The police shall after investigation, forward the
report along with the complaint filed under Sub-clause (1)
to the Court for trial under the Act.
(4) Notwithstanding anything contained in Sub-clauses
(1), (2) and (3) above, the complaint for taking cognizance
of an offence punishable under the Act may also be filed by
the Appropriate Government or the Appropriate Commission or
any of their officer authorized by them or a Chief
Electrical Inspector or an Electrical Inspector or an
authorized officer of Licensee or a Generating Company, as
the case may be directly in the appropriate Court.
(5) Notwithstanding anything contained in the Code of
Criminal Procedure 1973, every special Court may take
cognizance of an offence referred to in Section 135 to 139
of the Act without the accused being committed to it for
trial.”
we hold that the decisions
of Kerala High Court as well as Calcutta High Court and Madras High
Court in Chacko, A.K. & Anr. Vs. Assistant Executive Engineer, K.S.E.B.
(2010) 2 KLJ 569; Biswanath Patra Vs. Divisional Engineer AIR 2007 Cal
189; Ranjeet Kr. Bag Vs. State of West Bengal (2006) 1 C CrlJ (Cal)
334; Paramasivan vs. Union of India (2007) 2 KLT 733; Kumaran Chemicals
(P) Ltd. Rep. By its Managing Partner D. Thillairaj and Ors. vs.
Government of Pondicherry rep. by the Inspector of Police
MANU/TN/0584/2010 do not lay down correct law and the view taken by the
High Court of Delhi in Abhay Tyagi v. State NCT of Delhi & Anr. and
Asish Kumar Jain vs. State of Jharkhand (2010) CriLJ 271 is hereby
approved.
26. As a result this appeal fails and is hereby dismissed with
costs.
2014 (January part )judis.nic.in/supreme court/filename=41187
K.S. RADHAKRISHNAN, A.K. SIKRI
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.275 OF 2014
[Arising out of Special Leave Petition (Criminal) No. 4857 of 2008]
Vishal Agrawal & Anr. …............
Appellant(s)
Versus
Chhattisgarh State Electricity Board & Anr.
….............Respondent(s)
J U D G M E N T
A.K. SIKRI, J.
1. Leave granted.
2. A pure question of law which arises for consideration is: whether the
amendment in Section 151of the Electricity Act, 2003 (hereinafter
referred to as the Act] which empowers the Court to take cognizance of
an offence upon a report made by the police under Section 173 of the
Code of Civil Procedure [hereinafter referred to as the Code], would be
applicable to the pending complaints filed before the aforesaid
amendment. To answer this question, scope and interpretation of Section
151, as it stood prior to the amendment, also needs to be considered.
This issue has arisen in the following set of facts:
3. The respondent, viz. Chhattisgarh State Electricity Board (hereinafter
to be referred as the 'Board') is the supplier of electricity in the
State of Chhattisgarh. The appellants are the consumers of the
Electricity and getting supply thereof through the Electricity
connection provided by the Board. As per the Board, the appellants were
found committing theft of the electricity which was revealed on
23.3.2006 when the Electricity meter of the appellant was inspected by
the Inspection Team of the Board. It transpired that instead of the
approved 55.204 KW, the appellants were using load of 59.810 KW and the
meter was also tampered with. The Board made a complaint to the Station
House Officer (SHO), Police Station, Civil Lines, Bilaspur. On the
aforesaid allegations with request to the SHO to register a FIR against
the appellants on the basis of a complaint dated 30.3.2006, the FIR was
registered by the SHO on 31.3.2006 being FIR No. 227 of 2006 under
Section 135/126 of the Act. After investigating into the matter,
officer in-charge of the Police Station filed the challan before the
Special Judge, Bilaspur who passed orders dated 30.6.2006 taking
cognizance of offence under the aforesaid provisions of the Act.
4. Against this order, the appellants filed quashing petition before the
High Court on the ground that the Assistant Engineer had no authority
to make any written complaint and the Special Judge could not have
taken cognizance of the offence without complying with the provisions
of Section 151 of the Act. This petition was disposed of by the High
Court with a direction to the appellants to approach and raise the said
objection before the Special Judge. On that basis, the aforesaid plea
was pressed before the Special Judge as well by filing an application
to this effect. The contention of the appellants was found convincing
by the Special Judge who passed orders dated 26.9.2006 thereupon
holding that since the complaint had not been made by the officers
named in Rule 9 of the Chhattisgarh State Electricity Rules, 2006,
cognizance thereof could not be taken. As a sequittor, the appellants
were discharged from the case. At the same time liberty was also given
to the Board to take appropriate action in accordance with law.
5. The Board did not accept the aforesaid order and challenge the same
before the High Court by filing Criminal Revision on 4.2.2007. Within
four months thereof the Electricity Act was amended by inserting, inter
alia, Sections 151(A) and 151(B) to the said Act with effect from
15.6.2007. The High Court has by impugned order dated 26.2.2008,
reversed the orders of the Special Judge holding that as per Rule 12 of
Chhattisgarh State Electricity Rules, the police has been authorised by
the Central Government to forward the complaint received by the
officers authorised under Section 151 of the Electricity Act to the
concerned Court and, therefore, the complaint was validly instituted.
6. Before we take note of the contentions advanced before the High Court
and the manner in which the High Court has dealt with the same, it
would be apt to reproduce relevant provisions of the Electricity Act as
well as Chhattisgarh Electricity Rules, interpretation whereof is
involved in the present case.
7. Section 151 of the Act, as it existed before the amendment, is as
follows:
“151. Cognizance of offences:- No Court shall take cognizance of
an offence punishable under this Act except upon a complaint in
writing made by appropriate government or appropriate
Commissioner or any of their officer authorized by them or a
Chief Electrical Inspector or an Electrical Inspector or
Licensee or the generating company, as the case may be, for this
purpose.”
In exercise of powers conferred by Section 176 of the
Electricity Act, 2003 the Central Government framed Electricity
Rules, 2005, Rule 12 reads thus:-
“12. Cognizance of the Offence –
(1) The police shall take cognizance of the offence
punishable under the Act on a complaint in writing
made to the police by the appropriate Government or the
appropriate Commission or any of their officers authorized
by them in this regard or a Chief Electrical Inspector or
an Electrical Inspector or an authorized officer of
Licensee or a Generating Company, as the case may be.
2) The police shall investigate the complaint in accordance
with the general law applicable to the investigation of
any complaint. For the purposes of investigation of the
complaint the police shall have all the powers as
available under the Code of Criminal Procedure, 1973.
(3) The police shall after investigation, forward the
report along with the complaint filed under sub-clause (1)
to the Court for trial under the Act.
(4) Notwithstanding anything contained in sub-clause (1),
(2) and (3) above, the complaint for taking cognizance of
an offence punishable under the Act may also be filed by
the appropriate Government or the appropriate Commission
or any of their officers authorized by them or a Chief
Electrical Inspector or an Electrical Inspector or an
authorized officer of Licensee or a Generating
Company, as the case may be directly in the appropriate
Court.
(5) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, every special court may take
cognizance of an offence referred to in Sections 135 to 139
of the Act without the accused being committed to it for
trial.
(6) The cognizance of the offence under the Act shall not
in any way prejudice the actions under the provisions
of the Indian Penal Code.”
The principal Electricity Act, 2003 was further amended by the
Electricity (Amendment) Act, 2007 and apart from other
amendments in Section 151 of the prinicipal Act was also amended
and provisions in Sections 151, 151(A), 151 (B) were inserted.
In the Statement of Objects and Reasons for amending the Act, it
was stated as under:
“4. As per the provisions contained in Section 151 of the Act,
the offences relating to theft of electricity, electric lines
and interference with the meters are cognizable offences.
Concerns have been expressed that the present formulation of
Section 151 stands as a barrier to investigation of these
cognizable offences by the police. It is proposed to amend
Section 15 so as to clarify the position that the police would
be able to investigate the cognizable offences under the Act.
The expedite the trial before the Special Court, it is also
proposed to provide that a Special Court shall be competent to
take cognizance of an offence without the accused being
committed to it for trial.
1. Short title and commencement. (1) This act may be called
the Electricity (Amendment) Act, 2007.
2. It shall come into force on such date as the Central
Government may, by notification in the Official Gazette,
appoint:
“15. Amendment of Section 151. - In Section 151 of the
Principal Act, the following provisos shall be inserted, namely:-
Provided that the Court may also take cognizance of an
offence punishable under this Act upon a report of a police
officer filed under Section 173 of the Code of Criminal
Procedure, 1973 (2 of 1974).
Provided further that a special court constituted under
Section 153 shall be competent to take cognizance of an
offence without the accused being committed to it for
trial.
16. Insertions of new Sections 151-A and 151-B – After Section
151 of the principal act, the following sections shall be
inserted namely:-
“151-A. Power of police to investigate – For the
purposes of investigation of an offence punishable under
this Act, the police officer shall have all the powers as
provided in Chapter XII of the Code of Criminal Procedure,
1973 (2 of 1974).
151-B Certain offences to be cognizable and non-bailable. -
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), an offence punishable under
Sections 135 to 140 or Sections 150 shall be cognizable and
non-bailable.”
8. As per unamended Section 151 of the Act the cognizance of the
offence punishable under the Electricity Act can be taken only when
complaint is made in writing by:
(i) Appropriate Government, or
(ii) Appropriate Commissioner, or
(iii) Any of their officer authorized by them, or
(iv) A Chief Electrical Inspector,
(v) Electrical Inspector,
(vi) Licensee, or
(vii) The Generating Company,
as the case may be.
9. It was the submission of the appellant that the complaint could
be made to the Court by the appropriate Government or any of its
officers so authorised (as other persons specifically named to make
such complaints under Section 151 were not relevant). It was argued
that the State of Chhattisgarh has framed Chhattisgarh State
Electricity Rules, 2005 in exercise of powers under Section 151 of the
Act. As per Rule 9 of the said Rules, the persons who are authorized to
make the written complaints were either Assistant Electrical Inspector
of Chief Electrical Inspectorate of the State Government or an officer
not below the rank of Junior Engineer of the Board or Distribution
Licensee. It was the submission of the appellant that in the present
case the complaint was made by the Assistant Engineer who was below the
rank of Junior Engineer and, therefore, was not authorised to lodge the
complaint under Section 151. It was also argued that as per the
provisions of Section 151 of the Act, the complaint was required to be
made in the Court and not to the police and both these mandatory
conditions contained in Section 151 of the Act were not adhered to.
10. The High Court rejected the aforesaid contention holding that
Rule 12 of the Electricity Rules authorised the police to take
cognizance of the offence punishable under the Act and, therefore, it
was not necessary for the Board to file the complaint under Section
151. The High Court also held that by adding proviso to Section 151
along with insertion of Sections 151(A) and 151 (B) vide Electricity
(Amendment) Act, 2007, this position was made abundantly clear namely
cognizance of an offence punishable under the Act could be taken upon a
report of police officer filed under Section 173 of the Code of
Criminal Procedure. Contention of the appellants that the said
amendment came into effect only from 15.6.2007 with the passing of
Electricity Amendment Act, 2007 has been repelled by the High Court
taking note of the Statement of Objects and Reasons for amending the
Act which makes it absolutely clear that the purpose for amendment is
to clarify the position already prevailed viz. the police would be able
to investigate the cognizable offences under the Act. These are the
reasons given by the High Court for setting aside the order of the
Trial Court and allowing the Revision Petition of the Board.
11. Before us arguments of the parties remained the same. The
submission of learned Counsel for the appellant was that proviso to
Section 151 as well as provisions contained in Section 151(A) and
151(B) of the Electricity Act are substantive provisions which could
operate only prospectively i.e. the date on which the amendment was
notified and could not have retrospective operation, more particularly
when the provisions are in the realm of criminal law. He also referred
to certain judgments of few High Courts wherein such a view has been
taken. Learned Counsel for the respondent-Board, on the other hand,
extensively relied upon the reasoning of the High Court in the impugned
judgment and cited certain decisions of other High Courts which have
taken this very line of action.
12. We may mention at the outset that there is difference of opinion
on this issue among various High Courts. Kerala and Calcutta High
Court, have taken the view which goes in favour of the appellant
herein, in the following cases:-
Chacko, A.K. & Anr. Vs. Assistant Executive Engineer, K.S.E.B.
(2010) 2 KLJ 569; Biswanath Patra Vs. Divisional Engineer AIR
2007 Cal 189; Ranjeet Kr. Bag Vs. State of West Bengal (2006) 1
C CrlJ (Cal) 334; Paramasivan vs. Union of India (2007) 2 KLT
733; Kumaran Chemicals (P) Ltd. Rep. By its Managing Partner D.
Thillairaj and Ors. vs. Government of Pondicherry rep. By the
Inspector of Police MANU/TN/0584/2010.
13. A contrary view has been taken by High Courts of Delhi and
Jharkhand in the following cases:
Bimla Gupta vs. NDPL 136(2007) DLT 521; Ashish Kumar Jain vs.
State of Jharkhand (2010) CriLJ 271
Interestingly, though Calcutta High Court has taken different
view in the two judgments cited above, which are of the years 2006 and
2007, different view has been taken in the case Anjan De vs. State of
West Bengal (2008) 1 Cal LT 486 which is in tune with the judgments of
Delhi and Jharkhand High Courts.
14. Before we embark on detailed discussion, it is pertinent to
point out that this Court has already dealt with the same issue in the
case of Assistant Electrial Engineer vs. Satyendra Rai & Anr. (2012) 1
PLJR 476 wherein it has accepted the proposition that FIR with the
police can be registered de hors Section 151 of the Act (unamended)
which provides for filing of the complaint before the Special Court.
The relevant portion of the said judgment is as under:-
Though the report was made by the Assistant Electrical Engineer,
it was pointed out before the High Court that even if the police
had decided to file a report under Section 173 Code of Criminal
Procedure. Complaining the theft, the Court could not have taken
the cognizance as provided under Section 151 of the Act and only
a complaint should have been filed in writing by the appropriate
Government or their officers.
The High Court accepted this contention and held that the very
inception of the case was not in accordance with law and,
therefore, the first information report in the present case
could not be sustained. This is the judgment which has fallen
for our consideration.
We have heard learned Counsel appearing for the parties and gone
through the appeal.
Considering the position in law, it is obvious that the High
Court has completely misconstrued the relevant provision.
Considering the definition of “theft” of electricity in Section
135 of the Act, there could be no difficulty that in the first
information report, the theft as contemplated in Section 135 of
the Act was reported. The only question is as to whether the
police could have investigated on that basis and could have
filed a charge sheet against the Respondent No. 1-accused,
particularly in view of the language of Section 151 of the Act.
15. In that very judgment this Court also categorically pointed out
that proviso to Section 151 of the Act was clarificatory in nature.
This is so observed in para 9 which is as follows:
Therefore, considering the language of para 4 of the Statement
of Objects and Reasons, it is clear that the amendment brought
in is clarificatory in nature and as such it would take into its
ambit even the pending matters and in that sense it would be a
retrospective amendment.
16. Yet, there is one more reason given by the Court to hold that
FIR with the police officer would be competent, as can be found from
the following extracts from the said judgment:-
There is one more reason why the High Court's order can be
faulted. The High Court has clearly ignored the First Schedule
of the Code of Criminal Procedure and more particularly the
second part thereof, which is under the head “Classification of
Offences against other laws”. The second entry reads as follows:
If punishable with imprisonment for three years, and upwards but
not more than seven years, then such offences are held to be
cognizable, non-bailable and triable by the Court of Magistrate
of the first class.
Therefore, the High Court ought to have considered this
provision which makes the first information report acceptable by
the police in the sense that the police could investigate into
the matter and if found guilty could have also filed a report
under Section 173 Code of Criminal Procedure, before the Court
on which the Court could have taken the cognizance of the
offence.
17. In view of the aforesaid judgment of this Court, conclusively
holding that amendment to Section 151 is clarificatory in nature and
further that notwithstanding the provisions of Section 151 of the Act,
a FIR could be filed with the police, the matter stands clinched in
favour of the Board. However, at the same time we would like to
elaborate the view taken by this Court in the aforesaid judgment.
18. It would be essential to first take note of the relevant
provisions of the Electricity Act and the Code of Criminal Procedure.
The five provisions of the Electricity Act which are referred to are
Sections 135, 138, 151, 154 and 175 and these may be reproduced at this
stage:
“S. 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
(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 damaged or destroyed as to interfere with the proper
or accurate metering of electricity, 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 than if it is proved that any artificial means
or means not authorised by the Board or licensee 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.
2) Any office authorised 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 unauthorised use
of electricity;
c) examine or seize any books of accounts 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 there from 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:
Provided that no inspection, search and seizure of any
domestic place 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.
Xxxxx
S. 138. Interference with meters or works of licensee.-(1)
Whoever,
(a) unauthorisedly connects any meter, indicator or
apparatus with any electric line through which
electricity is supplied by a licensee or disconnects
the same from any such electric line; or
(b) unauthorisedly reconnects any meter, indicator or
apparatus with any electric line or other works being
the property of a licensee when the said electric line
or other works has or have been cut or disconnected; or
(c) lays or causes to be laid, or connects up any works
for the purpose of communicating with any other works
belonging to a licensee; or
d) maliciously injures any meter, indicator, or apparatus
belonging to a licensee or willfully or fraudulently
alters the index of any such meter, indicator or
apparatus or prevents any such meter, indicator or
apparatus from duly registering; shall be punishable
with imprisonment for a term which may extend to three
years, or with fine which may extend to ten thousand
rupees, or with both, and, in the case of a continuing
offence, with a daily fine which may extend to five
hundred rupees; and if it is proved that any means
exist for making such connection as is referred to in
Clause (a) or such re-connection as is referred to in
Clause (b), or such communication as is referred to in
Clause (c), for causing such alteration or prevention
as is referred to in Clause (d), and that the meter,
indicator or apparatus is under the custody or control
of the consumer, whether it is his property or not, it
shall be presumed, until the contrary is proved, that
such connection, reconnection, communication,
alteration, prevention or improper use, as the case may
be, has been knowingly and willfully caused by such
consumer.
Xxxxx
S. 151. Cognizance of offences.-No court shall take cognizance
of an offence punishable under this Act except upon a complaint
in writing made by Appropriate Government or Appropriate
Commission or any of their officer authorised by them or a Chief
Electrical Inspector or an Electrical Inspector or licensee or
the generating company, as the case may be, for this purpose.
Xxxxx
S. 154. Procedure and power of Special Court.-
1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), every offence punishable under
Sections 135 to 139 shall be triable only by the Special
Court within whose jurisdiction such offence has been
committed.
2) Where it appears to any court in the course of any inquiry
or trial that an offence punishable under Sections 135 to
139 in respect of any offence that the case is one which is
triable by a Special Court constituted under this Act for
the area in which such case has arisen, it shall transfer
such case to such Special Court, and thereupon such case
shall be tried and disposed of by such Special Court in
accordance with the provisions of this Act.
Provided that it shall be lawful for such Special Court to
act on the evidence, if any, recorded by any court in the
case of presence of the accused before the transfer of the
case of any Special Court:
Provided further that is such Special Court is of opinion
that further examination, cross-examination and re-
examination of any of the witnesses whose evidence has
already been recorded, is in the interest of justice, it may
re-summon any such witness and after such further
examination, cross-examination and re-examination, if any,
as it may permit, the witness shall be discharged.
3) The Special Court may, notwithstanding anything contained in
Sub-section (1) of Section 260 or Section 262 of the Code of
Criminal Procedure, 1973 (2 of 1974), try the offence
referred to in Sections 135 to 139 in a summary way in
accordance with the procedure prescribed in the said Code
and the provisions of Sections 263 to 265 of the said Code
shall, so far as may be, apply to such trial:
Provided that where in the course of a summary trial under
this sub-section, it appears to the Special Court that the
nature of the case is such that it is undesirable to try
such case in summary way, the Special Court shall recall any
witness who may have been examined and proceed to re-hear
the case in the manner provided by the provisions of the
said Code for the trial of such offence:
Provided further that in the case of any conviction in a
summary trial under this section, it shall be lawful for a
Special Court to pass a sentence of imprisonment for a term
not exceeding five years.
4) A Special Court may, with a view to obtaining ;the evidence
of any person supposed to have been directly or indirectly
concerned in or privy to, any offence tender pardon to such
person or condition of his making a full and true disclosure
of the circumstances within his knowledge relating to the
offence and to every other person concerned whether as
principal or abettor in the commission thereof, and any
pardon so tendered shall, for the purposes of Section 308 of
the Code of Criminal Procedure, 1973 (2 of 1974), be deemed
to have been tendered under Section 307 thereof.
5) The Special Court may 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 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 139.
S. 175. Provisions of this Act to be in addition to and not in
derogation of other laws:- The provisions of this Act are in
addition to and not in derogation of any other law for the time
being in force.”
19. As far as the scheme of the Code of Criminal Procedure
(hereinafter referred to as the 'Code') is concerned, it is essential
to point out that it demarcates the offences into two categories,
namely, cognizable and non-cognizable offences. As per Part II of
Schedule I of the Code, any offence punishable with three years or more
of imprisonment is a cognizable offence. Section 154 of the Code
prescribes that in respect of every offence which is a cognizable one,
information thereof is to be given to an officer in-charge of a police
station, who shall reduce the same into writing. Thus, it is the duty
and responsibility of the police authorities to register a First
Information Report. Sub-section (3) of Section 154 further obligates
the police authorities to investigate the same as per the manner
prescribed in subsequent sections and thereafter submit its report to
the Magistrate, who is empowered to take cognizance of the offence on
police report, under Section 173 of the Code, on completion of
investigation.”
20. Here, the provisions of Section 4 of the Code become relevant
which provide a complete answer to the submission of the appellant. It
reads:
“4. Trial of offence under the Indian Penal Code and other
laws. -
1) All offences under the Indian Penal Code (45 of 1860) shall
be investigated, inquired into, tried and otherwise dealt
with according to the provisions hereinafter contained.
(2) All offences under any other law shall be
investigated, inquired into, tried and otherwise dealt with
according to the same provisions, but subject to any
enactment for the time being in force regulating the manner
of place of investigation, inquiring into, trying or
otherwise dealing with such offences.”
21. It is apparent from the reading of Section 4 that provisions of
the Code would be applicable where an offence under the IPC or under
any other law is being investigated, inquired into, tried or otherwise
dealt with. These offences under any other law could also be
investigated, inquired into or tried with according to the provisions
of the Code except in case of an offence where the procedure prescribed
there under is different than the procedure prescribed under the Code.
It is so specifically provided under Section 155 of the Electricity Act
also. Thus, it is not a case where any special or different procedure
is prescribed. Rather, the procedure contained the Code is made
applicable for the offences to be tried under the Electricity Act as
well.
22. We would like to discuss here the judgment in the case of In M.
Narayandas v. State of Karnataka and Ors.2004 CriLJ 822, which has
direct bearing on the issue at hand. The question arose as to whether
Section 195 and Section 340 of the Code. affect the power of police to
investigate into a cognizable offence. Section 195 provides for
prosecution for contempt of lawful authority of public servants, for
offences against public justice and for offences relating to documents
given in evidence. It also states that no Court shall take cognizance
of the offences specified therein except on a complaint in writing of
that Court or of some other Court to which that Court is subordinate.
Section 340 of the Code prescribes the procedure as to how the
complaint may be preferred under Section 195 of the Cr.P.C. Alleging
that the accused had committed an offence under Section 195, the
complainant had made a complaint to the police and police had initiated
investigation thereon. The accused/respondent had contended that since
the case was filed under Section 195 of the Code it was provisions of
Chapter XVI of the Code which would apply and not Chapter XII thereof
(relating to investigation by the police). This contention was rejected
in the following manner:
“8. We are unable to accept the submissions made on behalf of
the respondent. Firstly, it is to be seen that the High Court
does not quash the complaint on the ground that Section 195
applied and that the procedure under Chapter XXVI had not been
followed. Thus such a ground could not be used to sustain the
impugned judgment. Even otherwise, there is no substance in the
submission. The question whether Sections 195 and 340 of the
Criminal Procedure Code affect the power of the police to
investigate into a cognizable offence has already been
considered by this Court in the case of State of Punjab v. Raj
Singh; 1998 Cri LJ 1104 . In this case it has been held as
follows:
We are unable to sustain the impugned order of the High
Court quashing the FIR lodged against the respondent
alleging commission of offences under Sections 419, 420, 467
and 468 IPC by them in course of the proceeding of a civil
suit, on the ground that Section 195(1)(b)(ii) CrPC
prohibited entertainment of and investigation into the same
by the police. From a plain reading of Section 195 CrPC it
is manifest that it comes into operation at the stage when
the court intends to take cognizance of an offence under
Section 190(1) CrPC; and it has nothing to do with the
statutory power of the police to investigate into an FIR
which discloses a cognizable offence, in accordance with
Chapter XII of the Code even if the offence is alleged to
have been committed in, or in relation to, any proceeding
under the Code is not in any way controlled or circumscribed
by Section 195 CrPC. It is of course true that upon the
charge-sheet (challan), if any, filed on completion of the
investigation into such an offence the court would not be
competent to take cognizance thereof in view of the embargo
of Section 195(1)(b) CrPC, but nothing therein deters the
court from filing a complaint for the offence on the basis
of the FIR (filed by the aggrieved private party) and the
materials collected during investigation, provided it forms
the requisite opinion and follows the procedure laid down in
Section 340 CrPC. The judgment of this Court in
Gopalakrishna Menon v. D. Raja Reddy; 1983 (3) SCR 836 on
which the high Court relied, has no manner of application to
the facts of the instant case for there cognizance was taken
on a private complaint even though the offence of forgery
was committed in respect of a money receipt produced in the
civil court and hence it was held that the court could not
take cognizance on such a complaint in view of Section 195
CrPC.
Not only are we bound by this judgment but we are also in
complete agreement with the same. Section 195 and 340 do not
control or circumscribe the power of the police to investigate
under the Criminal Procedure Code. Once investigation is
completed then the embargo in Section 195 would come into place
and the court would not be competent to take cognizance.
However, that court could then file a complaint for the offence
on the basis of the FIR and the material collected during
investigation provided the procedure laid down in Section 340 of
the Criminal Procedure Code is followed. Thus no right of the
respondent much less the right to file an appeal under Section
341, is affected.”
23. Thus, the clear principle which emerges from the aforesaid
discussion is that even when a Magistrate is to take cognizance when a
complaint is filed before it, that would not mean that no other avenue
is opened and the complaint/FIR cannot be lodged with the police. It is
stated at the cost of repetition that the offences under the
Electricity Act are also to be tried by applying the procedure
contained in the Code. Thus, it cannot be said that a complete
machinery is provided under the Electricity Act as to how such offences
are to be dealt with.
In view thereof, we are of the opinion that the
respondent's Counsel is right in his submission that
if the offence
under the Code is cognizable, provisions of Chapter XII containing
Section 154 Cr.P.C. and onward would become applicable and it would be
the duty of the police to register the FIR and investigate into the
same. Sections 135 and 138 only prescribe that certain acts relating to
theft of electricity etc. would also be offences. It also enables
certain persons/parties, as mentioned in Section 151, to become
complainant in such cases and file complaint before a Court in writing.
When such a complaint is filed, the Court would be competent to take
cognizance straightway. However, that would not mean that other avenues
for investigation into the offence which are available would be
excluded. It is more so when no such special procedure for trying the
offences under the Electricity Act is formulated and the cases under
this Act are also to be governed by the Code of Criminal Procedure.
24. In this backdrop, the notification dated 8.6.2005 issued by the
Central Government in exercise of powers under Section 176 of the
Electricity Act also requires a mention. Vide this notification the
Electricity Rules, 2005, have been framed and Rule 12, which is
relevant, reads as under:
12 (1) The police shall take cognizance of the offence
punishable under the Act on a complaint in writing made to
the police by the Appropriate Government or the Appropriate
Commission or any of their officer authorized by them in
this regard or a Chief Electrical Inspector or an Electrical
Inspector or an authorized officer of Licensee or a
Generating Company, as the case may be.
2) The police shall investigate the complaint in accordance with
the general law applicable to the investigation of any
complaint. For the purposes of investigation of the complaint,
the police shall have at the powers as available under the Code
of Criminal Procedure, 1973.
(3) The police shall after investigation, forward the
report along with the complaint filed under Sub-clause (1)
to the Court for trial under the Act.
(4) Notwithstanding anything contained in Sub-clauses
(1), (2) and (3) above, the complaint for taking cognizance
of an offence punishable under the Act may also be filed by
the Appropriate Government or the Appropriate Commission or
any of their officer authorized by them or a Chief
Electrical Inspector or an Electrical Inspector or an
authorized officer of Licensee or a Generating Company, as
the case may be directly in the appropriate Court.
(5) Notwithstanding anything contained in the Code of
Criminal Procedure 1973, every special Court may take
cognizance of an offence referred to in Section 135 to 139
of the Act without the accused being committed to it for
trial.”
25. In view of the aforesaid discussion, we hold that the decisions
of Kerala High Court as well as Calcutta High Court and Madras High
Court in Chacko, A.K. & Anr. Vs. Assistant Executive Engineer, K.S.E.B.
(2010) 2 KLJ 569; Biswanath Patra Vs. Divisional Engineer AIR 2007 Cal
189; Ranjeet Kr. Bag Vs. State of West Bengal (2006) 1 C CrlJ (Cal)
334; Paramasivan vs. Union of India (2007) 2 KLT 733; Kumaran Chemicals
(P) Ltd. Rep. By its Managing Partner D. Thillairaj and Ors. vs.
Government of Pondicherry rep. by the Inspector of Police
MANU/TN/0584/2010 do not lay down correct law and the view taken by the
High Court of Delhi in Abhay Tyagi v. State NCT of Delhi & Anr. and
Asish Kumar Jain vs. State of Jharkhand (2010) CriLJ 271 is hereby
approved.
26. As a result this appeal fails and is hereby dismissed with
costs.
….…....................................J.
[K.S. RADHAKRISHNAN]
…......................................J.
[A.K. SIKRI]
New Delhi
29th January , 2014
whether the
amendment in Section 151of the Electricity Act, 2003 (hereinafter
referred to as the Act] which empowers the Court to take cognizance of
an offence upon a report made by the police under Section 173 of the (Code of
Criminal Procedure)Code of Civil Procedure [hereinafter referred to as the Code], would be
applicable to the pending complaints filed before the aforesaid
amendment.=
In view thereof, we are of the opinion that the
respondent's Counsel is right in his submission that
if the offence
under the Code is cognizable, provisions of Chapter XII containing
Section 154 Cr.P.C. and onward would become applicable and it would be
the duty of the police to register the FIR and investigate into the
same. Sections 135 and 138 only prescribe that certain acts relating to
theft of electricity etc. would also be offences. It also enables
certain persons/parties, as mentioned in Section 151, to become
complainant in such cases and file complaint before a Court in writing.
When such a complaint is filed, the Court would be competent to take
cognizance straightway. However, that would not mean that other avenues
for investigation into the offence which are available would be
excluded. It is more so when no such special procedure for trying the
offences under the Electricity Act is formulated and the cases under
this Act are also to be governed by the Code of Criminal Procedure.
24. In this backdrop, the notification dated 8.6.2005 issued by the
Central Government in exercise of powers under Section 176 of the
Electricity Act also requires a mention. Vide this notification the
Electricity Rules, 2005, have been framed and Rule 12, which is
relevant, reads as under:
12 (1) The police shall take cognizance of the offence
punishable under the Act on a complaint in writing made to
the police by the Appropriate Government or the Appropriate
Commission or any of their officer authorized by them in
this regard or a Chief Electrical Inspector or an Electrical
Inspector or an authorized officer of Licensee or a
Generating Company, as the case may be.
2) The police shall investigate the complaint in accordance with
the general law applicable to the investigation of any
complaint. For the purposes of investigation of the complaint,
the police shall have at the powers as available under the Code
of Criminal Procedure, 1973.
(3) The police shall after investigation, forward the
report along with the complaint filed under Sub-clause (1)
to the Court for trial under the Act.
(4) Notwithstanding anything contained in Sub-clauses
(1), (2) and (3) above, the complaint for taking cognizance
of an offence punishable under the Act may also be filed by
the Appropriate Government or the Appropriate Commission or
any of their officer authorized by them or a Chief
Electrical Inspector or an Electrical Inspector or an
authorized officer of Licensee or a Generating Company, as
the case may be directly in the appropriate Court.
(5) Notwithstanding anything contained in the Code of
Criminal Procedure 1973, every special Court may take
cognizance of an offence referred to in Section 135 to 139
of the Act without the accused being committed to it for
trial.”
we hold that the decisions
of Kerala High Court as well as Calcutta High Court and Madras High
Court in Chacko, A.K. & Anr. Vs. Assistant Executive Engineer, K.S.E.B.
(2010) 2 KLJ 569; Biswanath Patra Vs. Divisional Engineer AIR 2007 Cal
189; Ranjeet Kr. Bag Vs. State of West Bengal (2006) 1 C CrlJ (Cal)
334; Paramasivan vs. Union of India (2007) 2 KLT 733; Kumaran Chemicals
(P) Ltd. Rep. By its Managing Partner D. Thillairaj and Ors. vs.
Government of Pondicherry rep. by the Inspector of Police
MANU/TN/0584/2010 do not lay down correct law and the view taken by the
High Court of Delhi in Abhay Tyagi v. State NCT of Delhi & Anr. and
Asish Kumar Jain vs. State of Jharkhand (2010) CriLJ 271 is hereby
approved.
26. As a result this appeal fails and is hereby dismissed with
costs.
2014 (January part )judis.nic.in/supreme court/filename=41187
K.S. RADHAKRISHNAN, A.K. SIKRI
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.275 OF 2014
[Arising out of Special Leave Petition (Criminal) No. 4857 of 2008]
Vishal Agrawal & Anr. …............
Appellant(s)
Versus
Chhattisgarh State Electricity Board & Anr.
….............Respondent(s)
J U D G M E N T
A.K. SIKRI, J.
1. Leave granted.
2. A pure question of law which arises for consideration is: whether the
amendment in Section 151of the Electricity Act, 2003 (hereinafter
referred to as the Act] which empowers the Court to take cognizance of
an offence upon a report made by the police under Section 173 of the
Code of Civil Procedure [hereinafter referred to as the Code], would be
applicable to the pending complaints filed before the aforesaid
amendment. To answer this question, scope and interpretation of Section
151, as it stood prior to the amendment, also needs to be considered.
This issue has arisen in the following set of facts:
3. The respondent, viz. Chhattisgarh State Electricity Board (hereinafter
to be referred as the 'Board') is the supplier of electricity in the
State of Chhattisgarh. The appellants are the consumers of the
Electricity and getting supply thereof through the Electricity
connection provided by the Board. As per the Board, the appellants were
found committing theft of the electricity which was revealed on
23.3.2006 when the Electricity meter of the appellant was inspected by
the Inspection Team of the Board. It transpired that instead of the
approved 55.204 KW, the appellants were using load of 59.810 KW and the
meter was also tampered with. The Board made a complaint to the Station
House Officer (SHO), Police Station, Civil Lines, Bilaspur. On the
aforesaid allegations with request to the SHO to register a FIR against
the appellants on the basis of a complaint dated 30.3.2006, the FIR was
registered by the SHO on 31.3.2006 being FIR No. 227 of 2006 under
Section 135/126 of the Act. After investigating into the matter,
officer in-charge of the Police Station filed the challan before the
Special Judge, Bilaspur who passed orders dated 30.6.2006 taking
cognizance of offence under the aforesaid provisions of the Act.
4. Against this order, the appellants filed quashing petition before the
High Court on the ground that the Assistant Engineer had no authority
to make any written complaint and the Special Judge could not have
taken cognizance of the offence without complying with the provisions
of Section 151 of the Act. This petition was disposed of by the High
Court with a direction to the appellants to approach and raise the said
objection before the Special Judge. On that basis, the aforesaid plea
was pressed before the Special Judge as well by filing an application
to this effect. The contention of the appellants was found convincing
by the Special Judge who passed orders dated 26.9.2006 thereupon
holding that since the complaint had not been made by the officers
named in Rule 9 of the Chhattisgarh State Electricity Rules, 2006,
cognizance thereof could not be taken. As a sequittor, the appellants
were discharged from the case. At the same time liberty was also given
to the Board to take appropriate action in accordance with law.
5. The Board did not accept the aforesaid order and challenge the same
before the High Court by filing Criminal Revision on 4.2.2007. Within
four months thereof the Electricity Act was amended by inserting, inter
alia, Sections 151(A) and 151(B) to the said Act with effect from
15.6.2007. The High Court has by impugned order dated 26.2.2008,
reversed the orders of the Special Judge holding that as per Rule 12 of
Chhattisgarh State Electricity Rules, the police has been authorised by
the Central Government to forward the complaint received by the
officers authorised under Section 151 of the Electricity Act to the
concerned Court and, therefore, the complaint was validly instituted.
6. Before we take note of the contentions advanced before the High Court
and the manner in which the High Court has dealt with the same, it
would be apt to reproduce relevant provisions of the Electricity Act as
well as Chhattisgarh Electricity Rules, interpretation whereof is
involved in the present case.
7. Section 151 of the Act, as it existed before the amendment, is as
follows:
“151. Cognizance of offences:- No Court shall take cognizance of
an offence punishable under this Act except upon a complaint in
writing made by appropriate government or appropriate
Commissioner or any of their officer authorized by them or a
Chief Electrical Inspector or an Electrical Inspector or
Licensee or the generating company, as the case may be, for this
purpose.”
In exercise of powers conferred by Section 176 of the
Electricity Act, 2003 the Central Government framed Electricity
Rules, 2005, Rule 12 reads thus:-
“12. Cognizance of the Offence –
(1) The police shall take cognizance of the offence
punishable under the Act on a complaint in writing
made to the police by the appropriate Government or the
appropriate Commission or any of their officers authorized
by them in this regard or a Chief Electrical Inspector or
an Electrical Inspector or an authorized officer of
Licensee or a Generating Company, as the case may be.
2) The police shall investigate the complaint in accordance
with the general law applicable to the investigation of
any complaint. For the purposes of investigation of the
complaint the police shall have all the powers as
available under the Code of Criminal Procedure, 1973.
(3) The police shall after investigation, forward the
report along with the complaint filed under sub-clause (1)
to the Court for trial under the Act.
(4) Notwithstanding anything contained in sub-clause (1),
(2) and (3) above, the complaint for taking cognizance of
an offence punishable under the Act may also be filed by
the appropriate Government or the appropriate Commission
or any of their officers authorized by them or a Chief
Electrical Inspector or an Electrical Inspector or an
authorized officer of Licensee or a Generating
Company, as the case may be directly in the appropriate
Court.
(5) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, every special court may take
cognizance of an offence referred to in Sections 135 to 139
of the Act without the accused being committed to it for
trial.
(6) The cognizance of the offence under the Act shall not
in any way prejudice the actions under the provisions
of the Indian Penal Code.”
The principal Electricity Act, 2003 was further amended by the
Electricity (Amendment) Act, 2007 and apart from other
amendments in Section 151 of the prinicipal Act was also amended
and provisions in Sections 151, 151(A), 151 (B) were inserted.
In the Statement of Objects and Reasons for amending the Act, it
was stated as under:
“4. As per the provisions contained in Section 151 of the Act,
the offences relating to theft of electricity, electric lines
and interference with the meters are cognizable offences.
Concerns have been expressed that the present formulation of
Section 151 stands as a barrier to investigation of these
cognizable offences by the police. It is proposed to amend
Section 15 so as to clarify the position that the police would
be able to investigate the cognizable offences under the Act.
The expedite the trial before the Special Court, it is also
proposed to provide that a Special Court shall be competent to
take cognizance of an offence without the accused being
committed to it for trial.
1. Short title and commencement. (1) This act may be called
the Electricity (Amendment) Act, 2007.
2. It shall come into force on such date as the Central
Government may, by notification in the Official Gazette,
appoint:
“15. Amendment of Section 151. - In Section 151 of the
Principal Act, the following provisos shall be inserted, namely:-
Provided that the Court may also take cognizance of an
offence punishable under this Act upon a report of a police
officer filed under Section 173 of the Code of Criminal
Procedure, 1973 (2 of 1974).
Provided further that a special court constituted under
Section 153 shall be competent to take cognizance of an
offence without the accused being committed to it for
trial.
16. Insertions of new Sections 151-A and 151-B – After Section
151 of the principal act, the following sections shall be
inserted namely:-
“151-A. Power of police to investigate – For the
purposes of investigation of an offence punishable under
this Act, the police officer shall have all the powers as
provided in Chapter XII of the Code of Criminal Procedure,
1973 (2 of 1974).
151-B Certain offences to be cognizable and non-bailable. -
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), an offence punishable under
Sections 135 to 140 or Sections 150 shall be cognizable and
non-bailable.”
8. As per unamended Section 151 of the Act the cognizance of the
offence punishable under the Electricity Act can be taken only when
complaint is made in writing by:
(i) Appropriate Government, or
(ii) Appropriate Commissioner, or
(iii) Any of their officer authorized by them, or
(iv) A Chief Electrical Inspector,
(v) Electrical Inspector,
(vi) Licensee, or
(vii) The Generating Company,
as the case may be.
9. It was the submission of the appellant that the complaint could
be made to the Court by the appropriate Government or any of its
officers so authorised (as other persons specifically named to make
such complaints under Section 151 were not relevant). It was argued
that the State of Chhattisgarh has framed Chhattisgarh State
Electricity Rules, 2005 in exercise of powers under Section 151 of the
Act. As per Rule 9 of the said Rules, the persons who are authorized to
make the written complaints were either Assistant Electrical Inspector
of Chief Electrical Inspectorate of the State Government or an officer
not below the rank of Junior Engineer of the Board or Distribution
Licensee. It was the submission of the appellant that in the present
case the complaint was made by the Assistant Engineer who was below the
rank of Junior Engineer and, therefore, was not authorised to lodge the
complaint under Section 151. It was also argued that as per the
provisions of Section 151 of the Act, the complaint was required to be
made in the Court and not to the police and both these mandatory
conditions contained in Section 151 of the Act were not adhered to.
10. The High Court rejected the aforesaid contention holding that
Rule 12 of the Electricity Rules authorised the police to take
cognizance of the offence punishable under the Act and, therefore, it
was not necessary for the Board to file the complaint under Section
151. The High Court also held that by adding proviso to Section 151
along with insertion of Sections 151(A) and 151 (B) vide Electricity
(Amendment) Act, 2007, this position was made abundantly clear namely
cognizance of an offence punishable under the Act could be taken upon a
report of police officer filed under Section 173 of the Code of
Criminal Procedure. Contention of the appellants that the said
amendment came into effect only from 15.6.2007 with the passing of
Electricity Amendment Act, 2007 has been repelled by the High Court
taking note of the Statement of Objects and Reasons for amending the
Act which makes it absolutely clear that the purpose for amendment is
to clarify the position already prevailed viz. the police would be able
to investigate the cognizable offences under the Act. These are the
reasons given by the High Court for setting aside the order of the
Trial Court and allowing the Revision Petition of the Board.
11. Before us arguments of the parties remained the same. The
submission of learned Counsel for the appellant was that proviso to
Section 151 as well as provisions contained in Section 151(A) and
151(B) of the Electricity Act are substantive provisions which could
operate only prospectively i.e. the date on which the amendment was
notified and could not have retrospective operation, more particularly
when the provisions are in the realm of criminal law. He also referred
to certain judgments of few High Courts wherein such a view has been
taken. Learned Counsel for the respondent-Board, on the other hand,
extensively relied upon the reasoning of the High Court in the impugned
judgment and cited certain decisions of other High Courts which have
taken this very line of action.
12. We may mention at the outset that there is difference of opinion
on this issue among various High Courts. Kerala and Calcutta High
Court, have taken the view which goes in favour of the appellant
herein, in the following cases:-
Chacko, A.K. & Anr. Vs. Assistant Executive Engineer, K.S.E.B.
(2010) 2 KLJ 569; Biswanath Patra Vs. Divisional Engineer AIR
2007 Cal 189; Ranjeet Kr. Bag Vs. State of West Bengal (2006) 1
C CrlJ (Cal) 334; Paramasivan vs. Union of India (2007) 2 KLT
733; Kumaran Chemicals (P) Ltd. Rep. By its Managing Partner D.
Thillairaj and Ors. vs. Government of Pondicherry rep. By the
Inspector of Police MANU/TN/0584/2010.
13. A contrary view has been taken by High Courts of Delhi and
Jharkhand in the following cases:
Bimla Gupta vs. NDPL 136(2007) DLT 521; Ashish Kumar Jain vs.
State of Jharkhand (2010) CriLJ 271
Interestingly, though Calcutta High Court has taken different
view in the two judgments cited above, which are of the years 2006 and
2007, different view has been taken in the case Anjan De vs. State of
West Bengal (2008) 1 Cal LT 486 which is in tune with the judgments of
Delhi and Jharkhand High Courts.
14. Before we embark on detailed discussion, it is pertinent to
point out that this Court has already dealt with the same issue in the
case of Assistant Electrial Engineer vs. Satyendra Rai & Anr. (2012) 1
PLJR 476 wherein it has accepted the proposition that FIR with the
police can be registered de hors Section 151 of the Act (unamended)
which provides for filing of the complaint before the Special Court.
The relevant portion of the said judgment is as under:-
Though the report was made by the Assistant Electrical Engineer,
it was pointed out before the High Court that even if the police
had decided to file a report under Section 173 Code of Criminal
Procedure. Complaining the theft, the Court could not have taken
the cognizance as provided under Section 151 of the Act and only
a complaint should have been filed in writing by the appropriate
Government or their officers.
The High Court accepted this contention and held that the very
inception of the case was not in accordance with law and,
therefore, the first information report in the present case
could not be sustained. This is the judgment which has fallen
for our consideration.
We have heard learned Counsel appearing for the parties and gone
through the appeal.
Considering the position in law, it is obvious that the High
Court has completely misconstrued the relevant provision.
Considering the definition of “theft” of electricity in Section
135 of the Act, there could be no difficulty that in the first
information report, the theft as contemplated in Section 135 of
the Act was reported. The only question is as to whether the
police could have investigated on that basis and could have
filed a charge sheet against the Respondent No. 1-accused,
particularly in view of the language of Section 151 of the Act.
15. In that very judgment this Court also categorically pointed out
that proviso to Section 151 of the Act was clarificatory in nature.
This is so observed in para 9 which is as follows:
Therefore, considering the language of para 4 of the Statement
of Objects and Reasons, it is clear that the amendment brought
in is clarificatory in nature and as such it would take into its
ambit even the pending matters and in that sense it would be a
retrospective amendment.
16. Yet, there is one more reason given by the Court to hold that
FIR with the police officer would be competent, as can be found from
the following extracts from the said judgment:-
There is one more reason why the High Court's order can be
faulted. The High Court has clearly ignored the First Schedule
of the Code of Criminal Procedure and more particularly the
second part thereof, which is under the head “Classification of
Offences against other laws”. The second entry reads as follows:
If punishable with imprisonment for three years, and upwards but
not more than seven years, then such offences are held to be
cognizable, non-bailable and triable by the Court of Magistrate
of the first class.
Therefore, the High Court ought to have considered this
provision which makes the first information report acceptable by
the police in the sense that the police could investigate into
the matter and if found guilty could have also filed a report
under Section 173 Code of Criminal Procedure, before the Court
on which the Court could have taken the cognizance of the
offence.
17. In view of the aforesaid judgment of this Court, conclusively
holding that amendment to Section 151 is clarificatory in nature and
further that notwithstanding the provisions of Section 151 of the Act,
a FIR could be filed with the police, the matter stands clinched in
favour of the Board. However, at the same time we would like to
elaborate the view taken by this Court in the aforesaid judgment.
18. It would be essential to first take note of the relevant
provisions of the Electricity Act and the Code of Criminal Procedure.
The five provisions of the Electricity Act which are referred to are
Sections 135, 138, 151, 154 and 175 and these may be reproduced at this
stage:
“S. 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
(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 damaged or destroyed as to interfere with the proper
or accurate metering of electricity, 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 than if it is proved that any artificial means
or means not authorised by the Board or licensee 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.
2) Any office authorised 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 unauthorised use
of electricity;
c) examine or seize any books of accounts 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 there from 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:
Provided that no inspection, search and seizure of any
domestic place 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.
Xxxxx
S. 138. Interference with meters or works of licensee.-(1)
Whoever,
(a) unauthorisedly connects any meter, indicator or
apparatus with any electric line through which
electricity is supplied by a licensee or disconnects
the same from any such electric line; or
(b) unauthorisedly reconnects any meter, indicator or
apparatus with any electric line or other works being
the property of a licensee when the said electric line
or other works has or have been cut or disconnected; or
(c) lays or causes to be laid, or connects up any works
for the purpose of communicating with any other works
belonging to a licensee; or
d) maliciously injures any meter, indicator, or apparatus
belonging to a licensee or willfully or fraudulently
alters the index of any such meter, indicator or
apparatus or prevents any such meter, indicator or
apparatus from duly registering; shall be punishable
with imprisonment for a term which may extend to three
years, or with fine which may extend to ten thousand
rupees, or with both, and, in the case of a continuing
offence, with a daily fine which may extend to five
hundred rupees; and if it is proved that any means
exist for making such connection as is referred to in
Clause (a) or such re-connection as is referred to in
Clause (b), or such communication as is referred to in
Clause (c), for causing such alteration or prevention
as is referred to in Clause (d), and that the meter,
indicator or apparatus is under the custody or control
of the consumer, whether it is his property or not, it
shall be presumed, until the contrary is proved, that
such connection, reconnection, communication,
alteration, prevention or improper use, as the case may
be, has been knowingly and willfully caused by such
consumer.
Xxxxx
S. 151. Cognizance of offences.-No court shall take cognizance
of an offence punishable under this Act except upon a complaint
in writing made by Appropriate Government or Appropriate
Commission or any of their officer authorised by them or a Chief
Electrical Inspector or an Electrical Inspector or licensee or
the generating company, as the case may be, for this purpose.
Xxxxx
S. 154. Procedure and power of Special Court.-
1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), every offence punishable under
Sections 135 to 139 shall be triable only by the Special
Court within whose jurisdiction such offence has been
committed.
2) Where it appears to any court in the course of any inquiry
or trial that an offence punishable under Sections 135 to
139 in respect of any offence that the case is one which is
triable by a Special Court constituted under this Act for
the area in which such case has arisen, it shall transfer
such case to such Special Court, and thereupon such case
shall be tried and disposed of by such Special Court in
accordance with the provisions of this Act.
Provided that it shall be lawful for such Special Court to
act on the evidence, if any, recorded by any court in the
case of presence of the accused before the transfer of the
case of any Special Court:
Provided further that is such Special Court is of opinion
that further examination, cross-examination and re-
examination of any of the witnesses whose evidence has
already been recorded, is in the interest of justice, it may
re-summon any such witness and after such further
examination, cross-examination and re-examination, if any,
as it may permit, the witness shall be discharged.
3) The Special Court may, notwithstanding anything contained in
Sub-section (1) of Section 260 or Section 262 of the Code of
Criminal Procedure, 1973 (2 of 1974), try the offence
referred to in Sections 135 to 139 in a summary way in
accordance with the procedure prescribed in the said Code
and the provisions of Sections 263 to 265 of the said Code
shall, so far as may be, apply to such trial:
Provided that where in the course of a summary trial under
this sub-section, it appears to the Special Court that the
nature of the case is such that it is undesirable to try
such case in summary way, the Special Court shall recall any
witness who may have been examined and proceed to re-hear
the case in the manner provided by the provisions of the
said Code for the trial of such offence:
Provided further that in the case of any conviction in a
summary trial under this section, it shall be lawful for a
Special Court to pass a sentence of imprisonment for a term
not exceeding five years.
4) A Special Court may, with a view to obtaining ;the evidence
of any person supposed to have been directly or indirectly
concerned in or privy to, any offence tender pardon to such
person or condition of his making a full and true disclosure
of the circumstances within his knowledge relating to the
offence and to every other person concerned whether as
principal or abettor in the commission thereof, and any
pardon so tendered shall, for the purposes of Section 308 of
the Code of Criminal Procedure, 1973 (2 of 1974), be deemed
to have been tendered under Section 307 thereof.
5) The Special Court may 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 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 139.
S. 175. Provisions of this Act to be in addition to and not in
derogation of other laws:- The provisions of this Act are in
addition to and not in derogation of any other law for the time
being in force.”
19. As far as the scheme of the Code of Criminal Procedure
(hereinafter referred to as the 'Code') is concerned, it is essential
to point out that it demarcates the offences into two categories,
namely, cognizable and non-cognizable offences. As per Part II of
Schedule I of the Code, any offence punishable with three years or more
of imprisonment is a cognizable offence. Section 154 of the Code
prescribes that in respect of every offence which is a cognizable one,
information thereof is to be given to an officer in-charge of a police
station, who shall reduce the same into writing. Thus, it is the duty
and responsibility of the police authorities to register a First
Information Report. Sub-section (3) of Section 154 further obligates
the police authorities to investigate the same as per the manner
prescribed in subsequent sections and thereafter submit its report to
the Magistrate, who is empowered to take cognizance of the offence on
police report, under Section 173 of the Code, on completion of
investigation.”
20. Here, the provisions of Section 4 of the Code become relevant
which provide a complete answer to the submission of the appellant. It
reads:
“4. Trial of offence under the Indian Penal Code and other
laws. -
1) All offences under the Indian Penal Code (45 of 1860) shall
be investigated, inquired into, tried and otherwise dealt
with according to the provisions hereinafter contained.
(2) All offences under any other law shall be
investigated, inquired into, tried and otherwise dealt with
according to the same provisions, but subject to any
enactment for the time being in force regulating the manner
of place of investigation, inquiring into, trying or
otherwise dealing with such offences.”
21. It is apparent from the reading of Section 4 that provisions of
the Code would be applicable where an offence under the IPC or under
any other law is being investigated, inquired into, tried or otherwise
dealt with. These offences under any other law could also be
investigated, inquired into or tried with according to the provisions
of the Code except in case of an offence where the procedure prescribed
there under is different than the procedure prescribed under the Code.
It is so specifically provided under Section 155 of the Electricity Act
also. Thus, it is not a case where any special or different procedure
is prescribed. Rather, the procedure contained the Code is made
applicable for the offences to be tried under the Electricity Act as
well.
22. We would like to discuss here the judgment in the case of In M.
Narayandas v. State of Karnataka and Ors.2004 CriLJ 822, which has
direct bearing on the issue at hand. The question arose as to whether
Section 195 and Section 340 of the Code. affect the power of police to
investigate into a cognizable offence. Section 195 provides for
prosecution for contempt of lawful authority of public servants, for
offences against public justice and for offences relating to documents
given in evidence. It also states that no Court shall take cognizance
of the offences specified therein except on a complaint in writing of
that Court or of some other Court to which that Court is subordinate.
Section 340 of the Code prescribes the procedure as to how the
complaint may be preferred under Section 195 of the Cr.P.C. Alleging
that the accused had committed an offence under Section 195, the
complainant had made a complaint to the police and police had initiated
investigation thereon. The accused/respondent had contended that since
the case was filed under Section 195 of the Code it was provisions of
Chapter XVI of the Code which would apply and not Chapter XII thereof
(relating to investigation by the police). This contention was rejected
in the following manner:
“8. We are unable to accept the submissions made on behalf of
the respondent. Firstly, it is to be seen that the High Court
does not quash the complaint on the ground that Section 195
applied and that the procedure under Chapter XXVI had not been
followed. Thus such a ground could not be used to sustain the
impugned judgment. Even otherwise, there is no substance in the
submission. The question whether Sections 195 and 340 of the
Criminal Procedure Code affect the power of the police to
investigate into a cognizable offence has already been
considered by this Court in the case of State of Punjab v. Raj
Singh; 1998 Cri LJ 1104 . In this case it has been held as
follows:
We are unable to sustain the impugned order of the High
Court quashing the FIR lodged against the respondent
alleging commission of offences under Sections 419, 420, 467
and 468 IPC by them in course of the proceeding of a civil
suit, on the ground that Section 195(1)(b)(ii) CrPC
prohibited entertainment of and investigation into the same
by the police. From a plain reading of Section 195 CrPC it
is manifest that it comes into operation at the stage when
the court intends to take cognizance of an offence under
Section 190(1) CrPC; and it has nothing to do with the
statutory power of the police to investigate into an FIR
which discloses a cognizable offence, in accordance with
Chapter XII of the Code even if the offence is alleged to
have been committed in, or in relation to, any proceeding
under the Code is not in any way controlled or circumscribed
by Section 195 CrPC. It is of course true that upon the
charge-sheet (challan), if any, filed on completion of the
investigation into such an offence the court would not be
competent to take cognizance thereof in view of the embargo
of Section 195(1)(b) CrPC, but nothing therein deters the
court from filing a complaint for the offence on the basis
of the FIR (filed by the aggrieved private party) and the
materials collected during investigation, provided it forms
the requisite opinion and follows the procedure laid down in
Section 340 CrPC. The judgment of this Court in
Gopalakrishna Menon v. D. Raja Reddy; 1983 (3) SCR 836 on
which the high Court relied, has no manner of application to
the facts of the instant case for there cognizance was taken
on a private complaint even though the offence of forgery
was committed in respect of a money receipt produced in the
civil court and hence it was held that the court could not
take cognizance on such a complaint in view of Section 195
CrPC.
Not only are we bound by this judgment but we are also in
complete agreement with the same. Section 195 and 340 do not
control or circumscribe the power of the police to investigate
under the Criminal Procedure Code. Once investigation is
completed then the embargo in Section 195 would come into place
and the court would not be competent to take cognizance.
However, that court could then file a complaint for the offence
on the basis of the FIR and the material collected during
investigation provided the procedure laid down in Section 340 of
the Criminal Procedure Code is followed. Thus no right of the
respondent much less the right to file an appeal under Section
341, is affected.”
23. Thus, the clear principle which emerges from the aforesaid
discussion is that even when a Magistrate is to take cognizance when a
complaint is filed before it, that would not mean that no other avenue
is opened and the complaint/FIR cannot be lodged with the police. It is
stated at the cost of repetition that the offences under the
Electricity Act are also to be tried by applying the procedure
contained in the Code. Thus, it cannot be said that a complete
machinery is provided under the Electricity Act as to how such offences
are to be dealt with.
In view thereof, we are of the opinion that the
respondent's Counsel is right in his submission that
if the offence
under the Code is cognizable, provisions of Chapter XII containing
Section 154 Cr.P.C. and onward would become applicable and it would be
the duty of the police to register the FIR and investigate into the
same. Sections 135 and 138 only prescribe that certain acts relating to
theft of electricity etc. would also be offences. It also enables
certain persons/parties, as mentioned in Section 151, to become
complainant in such cases and file complaint before a Court in writing.
When such a complaint is filed, the Court would be competent to take
cognizance straightway. However, that would not mean that other avenues
for investigation into the offence which are available would be
excluded. It is more so when no such special procedure for trying the
offences under the Electricity Act is formulated and the cases under
this Act are also to be governed by the Code of Criminal Procedure.
24. In this backdrop, the notification dated 8.6.2005 issued by the
Central Government in exercise of powers under Section 176 of the
Electricity Act also requires a mention. Vide this notification the
Electricity Rules, 2005, have been framed and Rule 12, which is
relevant, reads as under:
12 (1) The police shall take cognizance of the offence
punishable under the Act on a complaint in writing made to
the police by the Appropriate Government or the Appropriate
Commission or any of their officer authorized by them in
this regard or a Chief Electrical Inspector or an Electrical
Inspector or an authorized officer of Licensee or a
Generating Company, as the case may be.
2) The police shall investigate the complaint in accordance with
the general law applicable to the investigation of any
complaint. For the purposes of investigation of the complaint,
the police shall have at the powers as available under the Code
of Criminal Procedure, 1973.
(3) The police shall after investigation, forward the
report along with the complaint filed under Sub-clause (1)
to the Court for trial under the Act.
(4) Notwithstanding anything contained in Sub-clauses
(1), (2) and (3) above, the complaint for taking cognizance
of an offence punishable under the Act may also be filed by
the Appropriate Government or the Appropriate Commission or
any of their officer authorized by them or a Chief
Electrical Inspector or an Electrical Inspector or an
authorized officer of Licensee or a Generating Company, as
the case may be directly in the appropriate Court.
(5) Notwithstanding anything contained in the Code of
Criminal Procedure 1973, every special Court may take
cognizance of an offence referred to in Section 135 to 139
of the Act without the accused being committed to it for
trial.”
25. In view of the aforesaid discussion, we hold that the decisions
of Kerala High Court as well as Calcutta High Court and Madras High
Court in Chacko, A.K. & Anr. Vs. Assistant Executive Engineer, K.S.E.B.
(2010) 2 KLJ 569; Biswanath Patra Vs. Divisional Engineer AIR 2007 Cal
189; Ranjeet Kr. Bag Vs. State of West Bengal (2006) 1 C CrlJ (Cal)
334; Paramasivan vs. Union of India (2007) 2 KLT 733; Kumaran Chemicals
(P) Ltd. Rep. By its Managing Partner D. Thillairaj and Ors. vs.
Government of Pondicherry rep. by the Inspector of Police
MANU/TN/0584/2010 do not lay down correct law and the view taken by the
High Court of Delhi in Abhay Tyagi v. State NCT of Delhi & Anr. and
Asish Kumar Jain vs. State of Jharkhand (2010) CriLJ 271 is hereby
approved.
26. As a result this appeal fails and is hereby dismissed with
costs.
….…....................................J.
[K.S. RADHAKRISHNAN]
…......................................J.
[A.K. SIKRI]
New Delhi
29th January , 2014
