IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 8TH APRIL 2011 / 18TH CHAITHRA 1933 Crl.MC.No. 287 of 2011 --------------------------------- [CC.NO.988/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT, VARKALA] .................... PETITIONER/PETITIONER: ------------------------------------- VIJAYAN,S/O.GOPALAN,KIDANGIL VEEDU, NEAR TEMPLE, ELAKAMON, AYROOR VILLAGE, CHIRAYINKEEZHU TALUK. BY ADVS. SRI.R.ANILKUMAR, SMT.A.ARSHA. RESPONDENTS/COMPLAINANTS: ------------------------------------------------- 1. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. SUB INSPECTOR OF POLICE, VARKALA, PIN-695 141. 3. ASST.EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, VARKALA,PIN-695 141. R1 & R2 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No287 of 2011. ==================================== Dated this the 08th day of April, 2011 O R D E R Alleging that petitioner was found extracting electrical energy in an unauthorized manner on 05.02.2007 the Assistant Executive Engineer, Kerala State Electricity Board (for short, the Board”) Electrical Sub Division, Varkala gave Annexure-B, complaint to the Circle Inspector of Police, Varkala in that regard requesting that action may be taken for offence punishable under Sections 135 and 138 of the Indian Electricity Act (for short, “the Act”). Acting upon the said complaint the Varkala Police registered Crime No.93 of 2007 for offence punishable under Section 379 of the Indian Penal Code read with Secs.135 and 138 of the Act. In the mean time petitioner paid the amount due to the Board and the Assistant Executive Engineer issued Annexure- E, letter to the Circle Inspector of Police, Varkala referring to Crime No.93 of 2007 of Varkala Police Station and conveying that since the consumer has remitted penal bill and fine of `13,056/- vide receipt dated 12.02.2007 the case may be permitted to be CRL.M.C. No. 287 of 2011 -: 2 :- withdrawn. The Police however submitted Annexure-C, final report for offence punishable under Sec.379 of the IPC on which the learned Magistrate has taken cognizance on 14.02.2008. Cognizance taken and the final report are under challenge in this proceeding. I have learned counsel for petitioner, learned Public Prosecutor and the learned Standing Counsel for the third respondent (de facto complainant). 2. Learned counsel for petitioner contended that no offence under Sec.379 of the IPC is involved since electricity is not a movable property coming within the definition of theft under Sec.378 of the IPC. Learned counsel has placed reliance on the decision of this Court in Paramasivam M. v. Union of India (ILR 2006 [4] Kerala 875). Learned Standing Counsel for the Board submitted that it is in view of payment made by the consumer and evidenced by Annexure-E that offence under Secs.135 and 138 of the Act has been deleted from the final report and that final report is submitted only under Sec.379 of the IPC. 3. At this stage I am concerned only with the question whether cognizance taken for offence under Sec.379 of the IPC is legal and proper. It is true that there is no such contention CRL.M.C. No. 287 of 2011 -: 3 :- specifically raised in this petition. But that being a question of law this Court is justified in looking into that. Under Sec.378 of the IPC and as held by this Court in the decision referred supra the said provision applies only when there is removal of a 'movable' property from the possession of any person without consent of such person. 'Electricity' does not come within the category of movable property as held in the decision supra. It follows that the final report submitted for offence under Sec.379 of the IPC and the cognizance taken for the said offence are illegal and liable to be quashed. Resultantly, Criminal Miscellaneous Case is allowed. The final report in Crime No.93 of 2007 of Varkala Police Station, cognizance taken thereon and all proceeding against petitioner in C.C. No.988 of 2007 of the court of learned Judicial First Class Magistrate, Varkala for offence punishable under Sec.379 of the IPC are quashed. THOMAS P. JOSEPH, JUDGE. vsv