IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 Crl.MC.No. 2341 of 2011(A) -------------------------------------- [S.C.NO.459/2007 OF II ADDITIONAL SESSIONS COURT, PALAKKAD] .................... PETITIONERS/ACCUSED: ------------------------------------ 1. A.P.AZAD,S/O.MOIDEENKUTTY,CHAIRMAN, A.P.STEELS,KANJIKODE,PALAKKAD. 2. PANKAJAKSHAN,S/O.GOPALAN NAIR, MANAGING DIRECTOR, A.P.STEELS,KANJIKODE, PALAKKAD. 3. SANJAY BRATHAR,ELECTRICAL IN CHARGE, A.P.STEELS,KANJIKODE,PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN. RESPONDENT/STATE & COMPLAINANT: ---------------------------------------------------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM, REP. THE SUB INSPECTOR OF POLICE,WALAYAR POLICE STATION. BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C. NO.2341/2011-A: APPENDIX PETITIONER'S ANNEXURES:- ANNEXURE A.1: COPY OF THE FINAL REPORT CRIME NO. 342/2005 OF THE WALAYAR POLICE STATION. ANNEXURE A.2: TRUE ENGLISH TRANSLATION OF THE CHARGE FORMING PART OF ANNEXURE-A1. RESPONDENT'S ANNEXURES:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.2341 of 2011 ----------------------------------- Dated this the 23rd day of September 2011 O R D E R Petitioners are the accused in Crime No.342/2005 of Walayar Police Station. They were alleged to have committed offences punishable under Secs.135, 138 and 139 of the Electricity Act, 2003. The date of alleged offences was 22.12.2005. Therefore, the amended provisions of the Electricity Act, 2003 are to be applied. 2. The learned counsel for the petitioners submits that the learned Magistrate took cognizance of the offences based on the final report filed by the police under Sec.173(2) of Cr.P.C. This is bad in law, the learned counsel submits. Sec.151 of the Act makes it clear that the cognizance can be taken only on a complaint in writing made by appropriate government or appropriate commission or any of their officer authorised by them or a Crl.M.C. No.2341 of 2011 -: 2 :- Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose. Here, the cognizance was not taken based on a complaint by any of the officers mentioned in Sec.151 of the Act. It is submitted that there is a subsequent amendment which was brought into effect from 15.6.2007. The proviso was subsequently added to Sec.151 of the Act as per which now the cognizance can be taken based on a police report also. But the learned counsel submitted that the amendment brought into force in the year 2007 cannot have any retrospective operation since the amendment was not clarificatory in nature but is a new provision intended to enable the court to take cognizance of such offence based on a complaint which was not already there in Sec.151. In support of that submission, the learned counsel has relied upon the decision of the Division Bench of this Court in Ajayan P. and others v. State of Kerala [2011 (3) KHC 622] where it was held : Crl.M.C. No.2341 of 2011 -: 3 :- “151. Cognizance of offences -- No Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose.” In the light of the aforesaid decision, the cognizance taken in this case is set aside. In the result, this Crl.M.C. is allowed. It is made clear that this order does not preclude any of the officers mentioned in Sec.151 of the Act to file a complaint in accordance with that provision. N.K.BALAKRISHNAN, JUDGE. Jvt