IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 CRL.MC.NO. 77 OF 2011() ------------------------------------ CC.621/2010 OF JUDL. MAGISTRATE OF FIRST CLASS-III, KOZHIKODE .................... PETITIONER(S): ACCUSED --------------------------------------- P.P.ABDUL NAZAR, S/O.AHAMMED KOYA, P.P.HOUSE, MANKAVU, KOZHIKODE. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT/STATE ----------------------------------------------------------- 1. SUB INSPECTOR OF POLICE, KASABA POLICE STATION, KOZHIKODE. 2. STATE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. ASSISTANT ENGINEER, ELECTRICAL SECTION, MANKAVU, KOZHIKODE. BY PUBLIC PROSECUTOR SHRI K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.77 of 2011 ==================================== Dated this the 12th day of January, 2011 O R D E R Petitioner is accused in C.C. No.621 of 2010 of the court of learned Judicial First Class Magistrate-III, Kozhikode facing charge under Sections 135 and 138 of the Electricity Act (for short, “the Act”). Case was registered by the Kasaba police as Crime No.347 of 2010 on a complaint preferred by respondent No.3, Assistant Engineer, Electrical Section, Mankav, Kozhikode. Gist of the allegation is that on 20.05.2010 officials of the Kerala State Electriity Board (for short, “the Board) conducted a spot inspection in the premises of residence of petitioner and found that the electric meter installed in that premises was tampered. On enquiry, officials were of the opinion that petitioner is indulging unauthorized extraction of electrical energy. It amounted to theft, an offence punishable under Sec.135 of the Act. On 21.05.2010 at about 5.00 p.m. respondent No.3 lodged the complaint to the Sub Inspector who promptly registered a case and started investigation. Final report was filed against petitioner for offence as above stated. Learned Judicial First Class Magistrate has taken cognizance of the said offence in C.C. No.621 of 2010 against CRL. M.C. No.77 of 2011 -: 2 :- petitioner. Petitioner seeks to quash the said proceedings. Learned counsel for petitioner raised the following contentions in support of the plea: 1. The complaint was not preferred within 24 hours of detection of the offence as provided under Sec.135 of the Act and hence registration of the case and subsequent investigation are vitiated. 2. There is nothing on record to show that alleged extraction of energy was at the instance of petitioner. Possibility of outsiders doing so cannot be ruled out. 3. Learned Magistrate had no authority to take cognizance of the offence in view of Sec.153 of the Act. I have heard learned counsel for petitioner and the learned Public Prosecutor. 2. So far as point No.2, alleged extraction of energy is concerned complaint preferred by respondent No.3 states that at CRL. M.C. No.77 of 2011 -: 3 :- the time of inspection in the premises of residence of petitioner, electric meter installed outside the premises was seen tampered. Under the proviso to Sec.135(1) of the Act where it is proved that any artificial means or means not authorised by the Board or licence exist for the extraction, 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. In the light of the averments in the complaint and connected records it is possible for the prosecution to start with the initial presumption that petitioner who is a consumer of electrical energy has committed offence under Sec.135 of the Act. In the light of that, request to quash proceedings under Section 482 of the Code of Criminal Procedure (for short, “the Cr.P.C.”) as if there is no material against petitioner, cannot be accepted. 3. Point Nos.1 and 3 require deeper consideration. It is contended that complaint was preferred beyond 24 hours from the time of detection and hence respondent No.1 could not have registered the offence. In the complaint appended to the FIR it is stated that inspection was made on 20.05.2010 at 1.30 p.m and the complaint was presented to respondent No.1 on 21.05.2001 at 5.00 p.m., strictly not within 24 hours if computed from the CRL. M.C. No.77 of 2011 -: 4 :- time of inspection on 20.05.2010 at 1.30 p.m. Question is, assuming that complaint is preferred beyond 24 hours, registration of case is vitiated for that reason alone. The second proviso to sub-sec.1-A of Sec.135 of the Act states that officer of the licensee or supplier as the case may be shall lodge a complaint in writing relating to the commission of such offence in the police station having jurisdiction within twenty four hours from the time of disconnection. Disconnection in the present case was not on 20.05.2010 at 1.30 p.m., but it was later. According to the learned counsel disconnection was on 20.05.2010 at 2.20 p.m. Section 135 of the Act or for that purpose any other provisions in the said Act does not say the consequences of not filing the complaint within 24 hours. Nowhere it is stated that if complaint is preferred beyond 24 hours it could not be taken on file and no case could be registered. I can therefore understand the second proviso to Sec.1A of Sec.135 of the Act only as an obligation on the part of the officer concerned. If he violated that, he may be answerable to the Board but such direction cannot be taken as affecting the right of police to register the case based on the complaint preferred after 24 hours. Learned counsel suggested that in case complaint is preferred a few years after the alleged disconnection of electricity whether action could be taken in the CRL. M.C. No.77 of 2011 -: 5 :- mater. That in my view should depend upon the period of limitation under Sec.468 of the Cr.P.C. I am not persuaded to think merely because complaint is preferred a few hours after the expiry of 24 hours from the time of disconnection that respondent No.1 was prohibited from registering the case. 4. Further contention is that learned Magistrate could not have taken cognizance in view of Secs.154 and 155 of the Act. Section 151 of the Act deals with cognizance of offence and states that no court shall take cognizance of an offence punishable under the Act except upon a complaint in writing made by the Appropriate Government or Appropriate Commission or other officer referred to therein. But the proviso introduced by Act 26 of 2007 with effect from 15.06.2007 enabled the court to take cognizance of the offence punishable under the Act on a police report filed under Sec.173 of the Cr.P.C. as well. Admittedly detention of offence in the case was after 15.06.2007 and hence in the light of the proviso to Sec.151 of the Act learned Magistrate could take cognizance on a police report. 5. Coming back to Secs.154 and 155 of the Act, argument is that since Special Courts are constituted to try offences punishable under Secs.135 to 140 and 150 of the Act, learned Magistrate had no right to take cognizance. Learned CRL. M.C. No.77 of 2011 -: 6 :- counsel pointed out that unlike in the NDPS Act there is no transitional provision provided under the Act. Section 154(1) of the Act states that notwithstanding anything contained in the Code of Criminal procedure, 1973 (2 of 1974) every offence punishable under Sections 135 of 140 and Section 150 shall be triable only by the Special Courts within whose jurisdiction such offence has ben committed. Section 153 of the Act states that the State Government may for the purposes of providing speedy trial of offences referred to in Section 135 to 140 and Section 150 of the Act by notification in the Official Gazette constitute as many Special courts as may be necessary for such area or areas, as may be specified in the notification. It is not shown that so far as the State of Kerala is concerned any such Special Court has been constituted for trial of offences punishable under Secs.135 to 140 and 150 of the Act. So far as such Special Courts are not constituted, even in the absence of transitional provision as learned counsel contended I must presume that the regular courts have power to take cognizance of the said offences. Regular courts will stand denuded of their power only when Special Courts are constituted. Even mere constitution of the Special Courts will not oust the jurisdiction of the regular courts unless Presiding Officer is appointed for the Special Courts. I am unable CRL. M.C. No.77 of 2011 -: 7 :- to accept the contention advanced by learned counsel for petitioner that the court of learned Magistrate lacked jurisdiction. 6. On hearing learned counsel for petitioner and the learned Public Prosecutor I do not find reason to invoke the power Sec.482 of the Cr.P.C. 7. Learned counsel has referred to my attention to Sec.152 of the Act which provides for compounding of offence notwithstanding anything contained in the Cr.P.C. Learned counsel requested that right of petitioner to get the offences compounded may be reserved. I make it clear that if the Statute permits petitioner to compound the offences, it will be open to him to do so notwithstanding whatever I have stated above. Criminal Miscellaneous Case fails. It is dismissed. THOMAS P. JOSEPH, JUDGE. vsv