IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 OP(CRL.).NO. 1271 OF 2010(Q) -------------------------------------------- CRIME NO.364 OF 2004, VALAYAR POLICE STATION PETITIONER: ------------------- SUN METALS & ALLOYS PRIVATE LTD., 98/101, "INDSIL HOUSE", T.V.SAMY ROAD (WEST), R.S.PURAM, COIMBATORE-641 002, REPRESENTED BY ITS FINANCIAL ADVISOR, MR. V.NATARAJAN. BY SENIOR ADVOCATE SHRI JOSEPH KODIANTHARA BY ADV. SRI.V.ABRAHAM MARKOS SRI.MATHEWS K.UTHUPPACHAN SRI.BINU MATHEW SRI.TERRY V.JAMES SRI.B.J.JOHN PRAKASH SRI.TOM THOMAS (KAKKUZHIYIL) RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682 031. 2. ASSISTANT ENGINEER (ADDITIONAL CHARGE), ELECTRICAL SECTION, KANJIKODE, PALAKKAD, PIN-628 623. 3. SUB INSPECTOR OF POLICE, WALAYAR POLICE STATION, WALAYAR, PIN-628 624. 4. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695 004. BY PUBLIC PROSECUTOR SHRI K.J. MOHAMMED ANZAR ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 28/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(Crl.) No.1271 of 2010 ==================================== Dated this the 28th day of January, 2011 J U D G M E N T Alleging theft of electricity on the part of petitioner, Valayar police registered Crime No.366 of 2004 against petitioner at the instance of the Kerala State Electricity Board (for short, “the Board”) for offences punishable under Sections 135, 138 and 139 of the Electricity Act (for short, “the Act”). Petitioner challenged that proceeding in this Court in Crl. M.C. No.79 of 2005. That petition along with connected cases culminated in Ext.P9, judgment where learned Judge held that the crime registered against the petitioner is not valid and restrained the learned Magistrate from proceeding with the said case but leaving it open to the Board or the authorised Officer as the case may be to file written complaint before the learned Magistrate as provided under law. Petitioner alleges that for about four years thereafter the Board did not take any action in the matter and hence petitioner was constrained to file this petition under Article 227 of the Constitution praying for a declaration that no further proceeding O.P(Crl.) 1271 of 2010 -: 2 :- be initiated against petitioner with respect to the alleged theft of electricity, to direct learned Judicial First Class Magistrate, Palakkad to restrain himself from in any manner proceeding with or taking any consequent action pursuant to the alleged theft of electricity and for other reliefs. After this petition was filed, it is pointed out, the Board has preferred a complaint to the learned Magistrate alleging that petitioner has committed the offences punishable under Sections 135, 138 and 139 of the Act. 2. Learned Senior Advocate Shri Joseph Kodianthara appearing for the petitioner contended that the said complaint is an abuse of process of the law since it is hopelessly barred by limitation and that the complaint was filed only to circumvent the order that may be passed by this Court in this petition. Learned counsel for the Board has contended that the learned Magistrate has taken cognisance of the complaint and that there are sufficient provisions in the Code of Criminal Procedure either to condone the delay or exclude the relevant period in computing the period of limitation in filing the complaint if such a situation arose. The question whether the complaint is preferred after the period of limitation if any, such delay is to be condoned or any period is to be excluded in computing the period of limitation are O.P(Crl.) 1271 of 2010 -: 3 :- all matters which the learned Magistrate has to decide at the appropriate stage at the first instance. Having regard to the facts and circumstances of the case it is not necessary to pursue this Original Petition. Original Petition is therefore closed without prejudice to the right if any of the petitioner to challenge the complaint filed by the Board before learned Judicial First Class Magistrate-I, Palakkad, the cognisance taken thereon or other proceedings in the case as provided under law. THOMAS P. JOSEPH, JUDGE. vsv