IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 Crl.MC.No. 758 of 2010() ----------------------------------- C.C.678/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ATTINGAL CRIME NO.102/2005 OF KILIMANOOR POLICE STATION. ................. PETITIONER(S): ----------------------- V. VIJAYAN, S/O. VELAYUDHAN, AGED 63, MANAGING PARTNER, HOTEL SHILPA GARDENS, KILIMANOOR, THIRUVANANTHAPURAM. BY ADV. MR.KKM.SHERIF, MR.P.M. KUNJUMOIDEENKUTTY, MR.LAL K.JOSEPH, MR.ZIYAD RAHMAN, MR.RAKESH V.R. RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, KILIMANOOR POLICE STATION, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SUB DIVISION, KILIMANOOR, THIRUVANANTHAPURAM. 4. THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, KILIMANOOR, THIRUVANANTHAPURAM. R1 & R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. R3 & R4 BY ADV. MR.P.P.THAJUDEEN, SC, K.S.E.B. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.758 of 2010 -------------------------- ORDER Petitioner is the first accused in C.C.No. 678/2006 on the file of Judicial First Class Magistrate's Court-II, Attingal, taken cognizance for the offences under Section 135 and 136 of Indian Electricity Act, 2003 on Annexure-A5 final report submitted under Section 173(2) of Code of Criminal Procedure. Prosecution case is that in violation of the provision that electricity shall not be misused or stolen, Hotel Shilpa Gardens, owned by the petitioner/first accused as the Proprietor with the second accused as the Manager, having electric connection with Consumer No.16786, had stolen current from the meter and got the lights and electric equipments function and caused loss to Kerala State Electricity Board and thereby committed the offences. This petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken contending that as provided under Section 151 of Indian CRMC 758/10 2 Electricity Act, cognizance should not have been taken on a final report, but only on a complaint filed by an authorised officer and on that sole ground, the cognizance taken is to be quashed. It is also contended that subsequently, the Deputy Chief Engineer, Anti Power Theft Squad, after inspection, passed Annexure-A6 order stating that consumer has never indulged in theft of electricity, but found that there existed an unauthorised additional load of 2KW in the premises and this need not be penalised and the penalty issued need to be revised. The Assistant Engineer, Electrical Section was directed to revise the bill and taking into consideration, the amount already remitted on this account, the excess payment made by the consumer should be credited and no surcharge should be levied. It is contended that in such circumstances, even if petitioner is to be tried, he cannot be convicted and therefore, the case is to be quashed. 2. Learned counsel appearing for the petitioner and learned standing counsel appearing for respondents 3 and 4, the Engineers of Kerala State Electricity Board and learned Public Prosecutor were heard. CRMC 758/10 3 3. As rightly pointed out by the learned counsel appearing for the petitioner, learned Magistrate has taken cognizance on Annexure-A5 final report, submitted under Section 173(2) of Code of Criminal Procedure and not on a complaint filed by an officer as provided under Section 151 of Indian Electricity Act. Though, under the proviso to Section 151 of Indian Electricity Act, which came into effect on 15.6.2007, Magistrate is empowered to take cognizance even on a police report, the cognizance in this case was taken in 2006, prior to the commencement of the proviso to Section 151. Therefore, as declared by the Division Bench of this Court in Paramasivam v. Union of India (2007 (2) KLT 733), the cognizance taken is bad and it can only be quashed. Petition is allowed. The cognizance taken on Annexure-A5 final report in C.C.No.678/2006 on the file of Judicial First Class Magistrate's Court-II, Attingal is quashed. 16th March, 2010 (M.Sasidharan Nambiar, Judge) tkv