IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 Crl.MC.No. 268 of 2008() ------------------------ SC.195/2007 of ASSISTANT SESSIONS COURT, PALAKKAD CP.89/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... PETITIONER: IST ACCUSED ------------------------------------------- SENTHIL KUMAR, S/O.PERIASWAMY NADAR, DIRECTOR, SURYA LAKSHMI ELECTOSMELTS PVT. LTD., NEW INDUSTRIAL AREA, KANJIKKODE, PALAKKAD. BY ADV. SRI.P.R.VENKETESH RESPONDENTS: COMPLAINANT ------------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR. 2. SUB INSPECTOR OF POLICE, WALAYAR. 3. ASST. ENGINEER (ADDITIONAL CHARGE), ELECTRICAL SECTION, KANJIKKODE. BY PUBLIC PROSECUTOR STANDING COUNSEL,KSEB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.No.268 of 2008 = = = = = = = = = = = = = = Dated this the 11th day of February, 2008 ORDER The petitioner, who is the first accused in Crime No.37/2005 of Walayar Police Station registered for offences punishable under Section 135, 138 and 139 of the Electricity Act 2003 seeks to quash A1-FIR and the charge sheet as well as the cognizance taken by the J.F.C.M-I, Palakkad as also the proceedings now pending before the Assistant Sessions Court, Palakkad as S.C.No.195/2007. 2. Heard both sides. 3. What is revealed by the report dated 1/02/2008 of J.F.C.M- I, Palakkad is the following:- Crime No.37/2005 was registered by the Walayar Police for the aforesaid offences on a complaint lodged by the Assistant Engineer, Electricity Section, Kanjikode. After investigation the Sub Inspector of Police filed a final report before the aforesaid Magistrate for the aforesaid offences on 2.12.05. On the same day the Magistrate took cognizance of the offences and numbered the case as C.P.No.89/2005, presumably under the Crl.M.C.No.268 of 2008 2 mistaken impression that the case is to be tried by a Special Court to be constituted under Section 153 of the said Act and which Special court by virtue of Section 155 of the said Act is deemed to be a Court of Session. After following the formalities, the learned Magistrate committed the case to the Court of Session on 8.12.06 and that is how the case came to be registered as S.C.No.195/2007 and made over to the Assistant Sessions Court, Palakkad. 4. First of all by virtue of Section 151 of the said Act, a court can take cognizance of the aforementioned offences only upon a complaint in writing made by the Appropriate Government or by the Appropriate Commission or any of the officers authorised by them or a Chief Electrical Inspector or an Electrical Inspector or a licensee or the generating company, as the case may be, for the said purpose. Merely because an Assistant Engineer of the Electrical Section of the generating company had lodged a complaint before the Police, it cannot amount to a complaint preferred before the Magistrate for the purpose of taking cognizance. Here the cognizance of the aforementioned offences was taken by the Magistrate not on the Crl.M.C.No.268 of 2008 3 basis of the complaint preferred by any of the designated officers but on the basis of a police report under Section 173(2) Cr.P.C. Hence cognizance itself was bad. 5. The learned Magistrate was committing yet another illegality by registering the case as a C.P. case. It is true that Section 153 of the Act shows that the State Government may constitute as many Special Courts as may be necessary for such area or areas, as may be specified in the notification. The above provision is not at all mandatory and it is within the discretion of the State Government to constitute a Special Court. In Kerala no such special court has, so far been constituted. It is only when a special court has been constituted that Section 155 will have occasion to operate. The said provision says that every special court shall be deemed to be a Court of Session. When there is no special court constituted and the offences are not to be tried by a court of session, the case was not liable to be numbered as a C.P.Case which is intended to be committed to a Court of Session under Section 209 Cr.P.C. Hence the registration of C.P case and the subsequent committal were also bad. The result of the foregoing discussion is that right from the Crl.M.C.No.268 of 2008 4 stage of taking cognizance till the stage of committal, the learned Magistrate was in error. A case which has not been properly committed cannot be allowed to be tried by the Session Court also. Even though the offences are not exclusively triable by the court of Session. The Session Court cannot exercise the power under Section 228(1)(a)Cr.P.C by transferring the case from the Chief Judicial Magistrate to J.F.C.M, even if the case were to be so transferred. The Magistrate cannot take cognizance of the offences otherwise than on a complaint, if any, by the empowered officers for the purpose mentioned under Section 151 of the Electricity Act. Hence, the charge sheet as well as the proceedings before the committal court as also the proceedings before the Assistant Session Court, Palakkad are therefore quashed. It is, however, made clear that this order will not preclude the appropriate authority under Section 151 of the Electricity Act from filing a proper complaint before the Appropriate Forum. V. RAMKUMAR, JUDGE sj Crl.M.C.No.268 of 2008 5