“CR” IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 24TH JUNE 2010 / 3RD ASHADHA 1932 Crl.MC.No. 2180 of 2010() ------------------------- CC.687/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... PETITIONER(S): 1. A.K.CHACKO, ROBIN VILLA, KURPPASERY VEEDU, KURISSUMUDU, CHANGANACHERRY. 2. JOSEPH @ KOCHETTAN, EDAKATTU VEEDU, PERUVATHONAM. BY ADV. SRI.ANIL THOMAS (MELEMALAYIL) RESPONDENT(S): 1. T.A.MOHANDAS, ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, KSEB, KANJIRAPALLY, KOTTAYAM. 2. STATE OF KERALA REPRESENTED BY STATE PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.KAMMAPPU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: “CR” V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C..No.2180 of 2010 = = = = = = = = = = = = = = Dated this the 24 th day of June, 2010 ORDER Petitioners, who are accused Nos.1 and 2 in Crime No.201/2003 of Mundakkayam Police Station and subsequently taken on file as C.C.No.687/2004 before the J.F.C.M, Kanjirappally and now pending before the Additional Sessions Court(Special), Kottayam as S.C.No.284/2008 for offences punishable under Section 39 of the Indian Electricity Act, 1910 seeks to quash the entire proceedings against the petitioners. 2. The case of the prosecution is that the petitioners were found illegally abstracting electricity to the shed belonging to the 1st petitioner on 18.6.2003 by tapping from the electric post and thereby committed the aforesaid offence. The above crime was registered on the basis of a complaint filed by the Assistant Executive Engineer, Major Section, KSEB, Mundakkayam. Subsequently cognizance was taken by the Magistrate on the strength of the final report filed by the Police. 3. Apart from the fact that cognizance could not have been Crl. M.C. No. 2180 of 2010 2 taken on a police report, invocation of Section 39 of the Indian Electricity Act, 1910 was also misconceived. The occurrence took place on 18.06.2003. Indian Electricity Act, 1910 was repealed by Electricity Act, 2003 which came into force on 10.06.2003. Thus the occurrence in the present case took place after the coming into force of Electricity Act, 2003 and the registration of the FIR for an offence punishable under Section 39 of Indian Electricity Act, 1910 was misconceived. Even if the crime was registered for an offence punishable under Section 135 of the Electricity Act,2003, by virtue of Section 151 of the 2003 Act cognizance of the offence under the Act could be taken only on a complaint in writing made by the Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licencee or the generating company, as the case may be. The Police were given the power to investigate the offence under the 2003 Act only by virtue of Section 151A introduced with effect from 15.6.2007. Thus the Police could file a complaint only after 15.06.2007. Hence the cognizance taken in the year 2004 on a police report at a time when the Police did Crl. M.C. No. 2180 of 2010 3 not have the power to file a complaint was bad and opposed to Section 151 of the Act. Cognizance could have been taken only on a complaint by the appropriate statutory functionary. Hence cognizance taken on a police report and not on a complaint filed by the appropriate statutory functionary was bad in the light of the decisions in Biswanath Patra v. Divisional Engineer (ESNLP) (AIR 2007 Calcutta 189) and Paramasivan Vs.Union of India [ 2007 (2) KLT 733]. In Ballabhdas Agarwal v. J.C.Chakravarty (AIR 1960 SC 576), it was held that even where cognizance is taken on a complaint filed by an officer, if such officer was not duly empowered as the delegated authority to institute the criminal proceedings, then such proceedings could not be sustained and that the want of a proper complaint was not a mere defect or irregularity curable under Section 537 of the old Code corresponding to Section 465 of the present Code. 4. All that apart, if at all proceedings could have been taken against the petitioners, the same could only be under the new Act. The final report filed on 22.5.2004 charge-sheeting the petitioners under the old Act and the subsequent proceedings Crl. M.C. No. 2180 of 2010 4 taken as C.C.No.687/2004 before the J.F.C.M, Kanjirappally and S.C.No.284/2008 before the Special Court, shall stand quashed. However, it is made clear that this order will not preclude the prosecution of the petitioners under the appropriate penal provision and in accordance with the procedure established by law. This Crl.M.C is allowed as above. Dated this the 24th day of June, 2010. V. RAMKUMAR, JUDGE sj