IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 Crl.MC.No. 163 of 2006 -------------------------------- CC.437/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... PETITIONER/ACCUSED ------------------------------ SHEEBA BABU, W/O.BABU, KOONAMMAVU HOUSE, THANISSERY DESOM, KOTTOOR, IRINJALAKUDA. BY ADV. SRI.RAJESH CHAKYAT RESPONDENTS/CLAIMANT & STATE ------------------------------------------------- 1. THE SUB INSPECTOR OF POLICE, IRINJALAKUDA POLICE STATION, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE ASSISTANT ENGINEER, ELECTRICAL SECTION NO.1, IRINJALAKUDA. ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R2 SRI.K.S.ANIL, SC, KSEB FOR R2 R1 BY PUBLIC PROSECUTOR SRI.P.RAJENDRA BABU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.Gopinathan, J. ================================== Crl.M.C.No.163 of 2006-A ================================== Dated this the 13th day of February, 2009. ORDER The petitioner is the accused in C.C.No.437 of 2005 on the file of the Judicial Magistrate of the First Class, Irinjalakuda. The Sub Inspector of Police, Irinjalakuda filed Annexure-A2 charge sheet against the petitioner alleging offences under Sections 135, 136, 138 and 150 of the Indian Electricity Act of 2003 and Section 379 of the Indian Penal Code. Seeking an order to quash Annexure-A2 charge sheet, in exercise of power under Section 482 of the Code of Criminal Procedure, this petition was preferred. 2. According to the learned counsel for the petitioner, because of the prohibition contained in Section 151 of the Electricity Act, the learned Magistrate is not competent to take cognizance except upon a complaint in writing by an appropriate Government or appropriate Commissioner Crl.M.C.163/06 -:2:- or any other officer authorised by them or a Chief Electrical Inspector or licensee or the generating company, as the case may be and that the Sub Inspector of Police, Irinjalakuda Police Station is not an authorised officer coming under Section 151 of the Electricity Act. It was also argued that since the electricity is neither a movable nor immovable property, no offence under Section 379 I.P.C. would be attracted, in case the petitioner had consumed more energy by any mechanism other than that which is not permitted. According to the learned counsel, the petitioner had not consumed any unit of energy other than through the meter installed and no offence under Section 379 I.P.C. is established. 3. The contentions raised by the learned counsel for the petitioner are of substantive nature, but I am of the opinion that it is not to be looked into by this Court while considering a petition under Section 482 Cr.P.C. The contentions Crl.M.C.163/06 -:3:- advanced by the learned counsel require consideration by the trial court before proceeding with the trial. There is no case that the petitioner had advanced these contentions before the trial court. Unless it is established that the complaint was laid by a person who is authorised to put the law in motion to prosecute the petitioner, the trial court should not have initiated proceedings against the petitioner. 4. Learned Public Prosecutor submitted that the petitioner can very well advance the contentions now raised, before the trial court and the trial court is bound to consider the same before proceeding against the petitioner. The learned counsel for the petitioner could not state any reason for not raising the objection before the trial court. On the other hand, he does concede that the petitioner could raise his contentions before the trial court. 5. In the above circumstances, I find Crl.M.C.163/06 -:4:- that this petition can be disposed of with a direction to the learned Magistrate to consider the contentions advanced by the petitioner before initiating further proceedings against the petitioner in pursuance of Annexure A2 charge sheet and I do so. P.S.Gopinathan, Judge. sl.