IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 Crl.Rev.Pet.No. 1826 of 2011() ------------------------------ CC.3/2009 of VI ADDL. DIST. & SESSIONS COURT, ERNAKULAM .................... PETITIONER/ACCUSED ---------------------------- KUNJU,AGED 55,S/O.VAREETH,KOLENCHERRY HOUSE, MATTOOR KARA,MATTOOR VILLGE, ALUVA TALUK. BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH RESPONDENTS/STATE AND COMPLAINANT ------------------------------------------------- 1. STATE OF KERALA,REPRESENTED BY ITS DIRECTOR OF PROSECUTIONS,OFFICE OF THE DIRECTOR OF PROSECUTIONS,KERALA HIGH COURT BUILDINGS,ERNAKULAM PIN - 682 031. 2. THE SUB INSPECTOR OF POLICE, POLICE STATION, MUVATTUPUZHA - 686 661. BY PUBLIC PROSECUTOR SMT.SEENA R. BY ADV. SRI.K.M.SATHYANATHA MENON ,SC, KSEB THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/11/2011, ALONG WITH CRRP NO. 1827 OF 2011 CRRP NO. 1828 OF 2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK Crl.Rev.Pet.No. 1826 of 2011() ------------------------------------- APPENDIX ------------- PETITIONER'S ANNEXURE ----------------------------- ANNEXURE A1. COPY OF THE CHARGE, FRAMED BY THE DISTRICT AND SESSIONS JUDGE, IN CC NO.3 OF 2009, DATED 15TH SEPTEMBER, 2009. ANNEXURE A2. COPY OF THE ORDER IN CC NO.3/2009 DATED 20TH JUNE 2009 OF THE VI- DISTRICT AND SESSIONS JUDGE, ERNAKULAM. RESPONDENT'S ANNEXURE : NIL ------------------------------- / TRUE CPY / P.A. TO JUDGE VK S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P Nos.1826 OF 2011, 1827 OF 2011 AND 1828 OF 2011 ----------------------------------------- Dated this the 15th day of November 2011 ORDER These three revisions arise from three cases numbered as CC No.2/2009, CC No.3/2009 and CC No.4/2009 against the common accused, the petitioner, in all of them for offences under Sections 135 and 138 of the Indian Electricity Act, 2003 (for short, 'the Act') on the file of the VI Additional Sessions Court, Ernakulam. Cognizance of the offences against the petitioners/accused was taken in the above cases by the aforesaid court on the basis of final report filed by the Sub Inspector of Police, Moovattupuzha, after completion of investigation in three crime cases registered against the petitioner imputing him of having committed theft of electricity tampering the electric meter in his company and, thus, causing loss to the State Electricity Board. At the point of time when the crimes were registered, and also final reports filed in the above cases, authority was not conferred on the police to register and investigate energy theft cases without a complaint in writing from the Government or authority or officer named under Section 151 of Crl.R.P Nos.1826 OF 2011, 1827 OF 2011 AND 1828 OF 2011 2 the Act is not a matter in dispute. However, when that challenge was raised by the accused at the time of hearing on the framing of charges in the cases before the special court, contending that the cognizance taken on report filed by an incompetent authority is not sanctioned by law, the court below passed a common order in all the three cases holding that the lacuna pointed out could be cured by filing of complaint in the respective cases by the State Electricity Board as under Rule 12(4) of the Electricity Rules, 2005. Pursuant to such common order, complaints were filed under Rule 12(4) of the Electricity Rules, as directed, to enable the court to take cognizance of the offences imputed on the basis of the final reports filed by the police. Acting upon such complaints, the court, after hearing both sides, framed charges against the accused, separately, in all the three cases. Propriety, legality and correctness of the common order passed by the court holding that the lacuna could be cured by presenting of fresh complaint by the Board, and also the charges framed, separately, in each of the cases are challenged in these revisions by the accused. 2. I heard the learned counsel for the petitioner and also the learned Public Prosecutor. Standing counsel for Kerala State Crl.R.P Nos.1826 OF 2011, 1827 OF 2011 AND 1828 OF 2011 3 Electricity Board, though the Board has not been made a party in these revisions, was also heard in the matter. 3. At the point of time when the crimes were registered and reports were filed before the court, the police was not empowered to do so under the statutory prescriptions applicable for taking cognizance of offence over energy thefts is not open to doubt nor is disputed. When that be so, the court below was not justified in holding that the crime registered over energy theft without a complaint from a competent person thereof and final reports filed in such crime after investigation is not fatal, but, a defect which could be cured by filing a subsequent complaint by the Board. Where the police lacked authority to register the crime and investigate the case relating to energy theft without a complaint from the competent authority, cognizance of the offence on the basis of the report filed in such cases cannot be taken by the court as it is not sanctioned by law. A proviso has now been added under Section 151 of the Act, which presently enables cognizance of the offence being taken on a police report filed under Section 173 of the Code of Criminal Procedure would not enable the court to take cognizance of the offence in respect of crimes registered Crl.R.P Nos.1826 OF 2011, 1827 OF 2011 AND 1828 OF 2011 4 on report filed by the police prior to the coming into force of that proviso, which was made applicable only from 15-06-2007, where the crimes thereof had been registered without a complaint from an authority as named under Section 151 of the Act. The court was given the power to take cognizance of an offence on a report filed by a police officer under Section 173(2) of the Code of Criminal Procedure, for the first time after the proviso added to Section 151 came into force with effect from 15-06-2007. Section 151 of the Act, previously, reads thus : “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 authorized 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.” To the aforesaid Section, two provisos were added by way of amendment in Act 26 of 2007 as follows: “Provided that the Court may also take cognizance of an offence punishable under this Act upon a report of a Police Officer filed under Section 173 of the Code of Criminal Procedure, 1973.” “Provided further that a special Court constituted under Section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.” Crl.R.P Nos.1826 OF 2011, 1827 OF 2011 AND 1828 OF 2011 5 The aforesaid amendments, as already indicated, came into effect only from 15-06-2007. In respect of crimes registered and final reports filed by police before the aforesaid date, if it was not proceeded on the basis of a complaint from the competent authority named under Section 151 of the Act, the court cannot take cognizance of the offence on such a report as there is a statutory bar. Without a complaint from the competent authority the police did not have any authority to register a case nor file a final report, and the court also could not take cognizance of any offence on such report from the police, before 15-06-2007. That being so, on the reports filed in the above case by the police, that too before the aforesaid date, in crime cases registered without complaint from the competent authority, cognizance taken by the court overlooking the statutory bar, was perse wrong. The report filed by the police suffered only some lacuna, which could be cured by filing complaint from the Board, that too after cognizance was taken by the court on such report, the view formed by the court below directing for filing such complaint is clearly erroneous, and the orders passed accordingly are wholly unsustainable. Crl.R.P Nos.1826 OF 2011, 1827 OF 2011 AND 1828 OF 2011 6 Suffix to say the proceedings taken by the court below taking cognizance of the offence against the petitioner on the final reports filed by the police, which proceeded without a complaint from the competent authority as under Section 151 of the Act, and the common order passed directing the Board to file complaints, and also the charges framed against the accused, separately, taking into consideration such complaints by the Board as well, are without jurisdiction and liable to be quashed. I do so. 4. What next is to be done in the given facts of the case has also to be examined. Where cognizance taken on the ofences on final report filed by the police and also the charges framed are found to be without jurisdiction, the accused, no doubt, is entitled to be discharged in all the three cases, but, that would not preclude the Board from filing a fresh complaint over the energy theft alleged against the petitioner, nor the police from filing a report again as of now after the amendment to Section 151 of the Act including the first proviso the police is fully competent to do so and the court empowered to take cognizance of the offence on such report. Competency of the Board to file a complaint and also the police to file report, over the energy theft involved in the Crl.R.P Nos.1826 OF 2011, 1827 OF 2011 AND 1828 OF 2011 7 cases imputed against the petitioner, as provided by law, shall remain unaffected by the orders in these revisions quashing the proceedings taken against the accused on the basis of the final reports filed by the police when there was a statutory bar as and when the reports were filed and cognizance of the offences taken by the court. Orders passed by the court below framing charges against the accused shall also stand quashed, and the accused shall stand discharged. Revisions are disposed as above. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge