IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 Crl.MC.No. 4361 of 2010() ----------------------------------- CC.12/2008 of ADDL.SESSIONS COURT, PARAVUR CC.1567/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... PETITIONER(S): ---------------------- 1. PREMKUMAR, S/O.JAGANATHAN, 2156, UDAYANAGAR EXTN., GANAPATHY HOUSING UNIT, COIMBATORE. 2. RATHINAVEL, S/O.THIRUNAVUKARASU, PHASE II, MAHARANI AVENUE, VADAVALLI, COIMBATORE. 3. VENKITTAPATHY, S/O.PAPPUSWAMY NAIDU, 112/B, SWATHI COURTS, KATTOOR ST, P N PALAYAM, COIMBATORE. 4. UNNIKRISHNAN, S/O.SUNDARAN NAIR, PURAVATHODY, CHERAYA, KONGAD, PALAKKAD. BY ADVS. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (REPRESENTING THE SUB INSPECTOR OF POLICE, ALUVA POLICE STATION, ALUVA, ERNAKULAM). 2. ASSISTANT ENGINEER, ELECTRICAL SECTION, TOWN ALUVA, PIN-683 101. R1 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.4361 OF 2010 --------------------------------------------- Dated 15th November, 2010 O R D E R Petitioners are the accused in C.C.1567/2006 on the file of Judicial First Class Magistrate's Court-I, Aluva, now pending as C.C.12/2008 on the file of Additional Sessions Court, North Paravoor. Learned Magistrate has taken cognizance of the offence under Section 379 read with Section 34 of Indian Penal Code and Sections 135 and 138 of Indian Electricity Act on Annexure-I final report filed under Section 173(2) of Code of Criminal Procedure. Petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken contending that, learned Magistrate was not competent to Crmc 4361/10 2 take cognizance of the offences under Electricity Act on a final report, as cognizance could only be taken for the offence under the Electricity Act only on a complaint as provided under Section 151 of the Electricity Act. It is also contended that the offence under Section 379 of Indian Penal Code is not attracted, as held by this Court in Paramasivan v. Union of India (2007 (2) KLT 733). 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Though learned Magistrate has taken cognizance and later the case was transferred to Additional Sessions Court as provided under Section 154(2) of the Electricity Act, as held by this Court in Paramasivan's case (supra) as Crmc 4361/10 3 electricity is not a movable property which could be moved with the dishonest intention of taking it, an offence under Section 379 of Indian Penal Code is not attracted. Hence cognizance taken for that offence can only be quashed. 4. As provided under Section 151 of Indian Electricity Act, cognizance could only be taken, as the cognizance taken in 2006 in this case, on a complaint filed as provided. The cognizance in this case was taken not on a complaint but on a final report submitted by the Sub Inspector of Police under Section 173 (2) of Code of Criminal Procedure on investigation. Though Section 151 A of Indian Electricity Act was introduced later, it came into force only with effect from 15/6/2007. The cognizance taken earlier to 15/6/2007 cannot be Crmc 4361/10 4 validated by Section 151 A, which has no retrospective effect. As held by this court in Chacko v. Mohandas (2010 (3) KLT 122), the cognizance taken against the petitioners on the final report can only be quashed. It is made clear that quashing of the cognizance taken will not prevent the Court from taking cognizance on a final report, filed after 15/6/2007 as w.e.f.15/6/2007, cognizance could be taken only on a final report. Petition is allowed. Cognizance taken by Judicial First Class Magistrate and now pending before Additional Sessions Court, North Paravur is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.