- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.2088 OF 2006 WRIT PETITION NO.2088 OF 2006 WRIT PETITION NO.2088 OF 2006 Vijay Bhagwan Shetty ...Petitioner vs. 1.The State of Maharashtra 2.Maharashtra State Electricity Distribution Co.Ltd. ...Respondents Mr.Nitin Pradhan with Ms Shubhada Khot for the petitioner Mr.D.P.Adsule A.P.P. for State Mr.L.M.Acharya for Respondent No.2. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : SEPTEMBER 26,2008 : SEPTEMBER 26,2008 : SEPTEMBER 26,2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The submissions of the learned counsel for the parties were heard on 27th August 2008 and the Judgment was reserved. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to refer to the facts of the case in brief. 2. One Mr.Dharmaraj Pandharinath Pethkar, Deputy Executive Engineer of Flying Squad of the Maharashtra State Electricity Board lodged F.I.R on 5th September 2003 with Bhor Police Station alleging commission of offence under section 135 and 138 of the Electricity Act,2003 (hereinafter referred to as the said Act). The allegation made in the F.I.R was as regards theft of electricity. On completion of the investigation, on 29th September 2003, the concerned police officer filed a charge-sheet under section 173 of the Code of Criminal Procedure,1973. Cognizance was taken by the learned Judicial Magistrate First Class on the basis of the said - 2 - report. On 22nd February 2006, the learned Magistrate committed the case to the court of Sessions. An application for discharge was filed by the petitioner before the Sessions Court which has been dismissed by the order dated 28th July 2006 by the Sessions Court. By this petition under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure,1973, the petitioner has prayed for quashing the proceedings of the case. 3. The learned counsel for the petitioner has placed reliance on the section 151 of the said Act of 2003. He submitted that section 151 of the said Act provides that no court shall take cognizance of the offence punishable under the said Act except upon a complaint in writing made by the appropriate Government or appropriate Commission or any of their officer authorised by them or Chief Electrical Inspector or Electrical Inspector or licensee or the generating company as the case may be for this purpose. The said section 151 of the said Act was amended with effect from 23rd June 2005. He submitted that thus till 23rd June 2005, it was not open for any court to take cognizance of the offence on a police report as done by the learned Magistrate in this case. He pointed out that the said amendment to section 151 permitting cognizance to be taken upon the police report was brought on the statute book with effect from 23rd June 2005. He submitted that in the present case, cognizance was taken long before on 23rd June 2005. He, therefore, submitted that the entire proceedings - 3 - were bad in law. He placed reliance on the decision of this court in case Shakambari Industries, Akola and another Vs. State of Maharashtra and another [2006 (2) Mh.L.J. page 170] as well as another decision of this court in the case of Dr.Kasim s/o Maulana Razzak Saheb Chimthanwala Vs. State of Maharashtra (in Criminal Application No.655 of 2004 decided on 12th March 2004). 4. The learned counsel for the second Respondent submitted that even assuming that the cognizance was wrongly taken by the learned Magistrate, in view of clause (e) of section 460 of the said Code of 1973, the proceedings of the case cannot be set aside merely on the ground that the learned Magistrate was not so empowered. He submitted that in any case on 22nd February 2006, when the learned Magistrate committed the case to the court of Sessions, in view of the Maharashtra Amendment to section 151 of the said Act, on that day the learned Magistrate had power to take cognizance on the basis of the police report. He, therefore, submitted that no interference was called for and the learned Sessions Judge has rightly rejected the application for discharge. 5. I have carefully considered the submissions. Section 151 of the said Act before the Maharashtra Amendment was as under: "151.Cognizance of offences 151.Cognizance of offences 151.Cognizance of offences - No Court shall take cognizance of an offence punishable under this Act except upon a - 4 - 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." The learned Sessions Judge has rightly held that the said section was mandatory. Under the said section, even the complaint in writing has to be filed by the Appropriate Government or Appropriate Commission or any of their Officer authorised by them or the Chief Electrical Inspector or Electrical Inspector or licensee or the generating company as the case may be. In the present case, the first informant was a Deputy Executive Engineer of the Maharashtra State Electricity Board. Obviously, the said Officer was not an Officer authorised either by the Appropriate Government, or Commission as neither the Maharashtra State Electricity Board nor the second respondent-company can be termed as Appropriate Commission. The first informant is neither the Chief Electrical Inspector nor an Electrical Inspector. Obviously, he was not the licensee or the generating company. On this aspect, it will be necessary to refer to the decision of the learned Single Judge of this court in case of Shakambari (supra). This was a case where the Assistant Engineer had lodged F.I.R relating to commission of an offence under section 135 of the said Act. The learned Single Judge of this Court held that cognizance of the offence under the said Act - 5 - could have been taken only upon a complaint and not upon a police report and therefore, charge-sheet cannot be filed under the said Act. Therefore, prayer for quashing was granted by this court. 6. In the case of Dr.Kasim (supra), F.I.R was filed by the Deputy Executive Engineer of the Flying Squad. Even in the said case reliance was placed on section 151 of the said Act. It was contended that cognizance could not have been taken on the basis of the police report. It will be necessary to refer to paragraphs 10 and 11 of the said decision which read thus : "10. From the perusal of Section 151 of the Electricity Act,2003, it is very clear that the said section is in fact not meant to decide as to whether the case is cognizable or not. It only says under which circumstances, the court can take cognizance of the offences punishable under the said Act. The words used therein are "except upon a complaint in writing". So, it is necessary that the complaint which is required to be filed by a particular person mentioned in the section must be in writing. The question arises whether such a complaint is to be filed before the police so as to enable them to register crime and investigate the same or whether the complaint contemplated in this Section 151 is a complaint as defined in Section 2(d) of the Criminal Procedure Code. Admittedly, the word ’complaint’ is not - 6 - defined in the Electricity Act,2003 so also the word "Court" is also not defined. Of course, from the perusal of the said Act, it appears that special Courts are to be constituted as per Section 153 of the said Act and they are empowered to try the case under the said Act. From perusal of Section 155, it appears that save as otherwise provided in the said Act provisions of Code of Criminal Procedure,1973 in so far as they are not inconsistent with the provisions of this Act shall apply to the proceedings before the Special Court and for the purpose of provisions of said enactment, the Special Court shall be deemed to be the Court of Sessions. So, considering this position, one can see that the word ‘complaint’ used in Section 151 is not in a general sense as ’grievance’. But, it is in fact a complaint as contemplated by section 29d) of the Code of Criminal Procedure,1973. Section 2(d) of the Code of Criminal Procedure,1973 says that : . "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. 11. So, So, So, even if the complaint is filed before the police for even if the complaint is filed before the police for even if the complaint is filed before the police for the the the offence punishable under section 135 of the offence punishable under section 135 of the offence punishable under section 135 of the Electricity Electricity Electricity Act and after the investigation report is Act and after the investigation report is Act and after the investigation report is - 7 - submitted submitted submitted by the police to the Court, still then by the police to the Court, still then by the police to the Court, still then cognizance cognizance cognizance of the same cannot be taken before the report of the same cannot be taken before the report of the same cannot be taken before the report of of of the police officer cannot be said to be a complaint as the police officer cannot be said to be a complaint as the police officer cannot be said to be a complaint as defined defined defined in Section 2(d) of the Code of Criminal Procedure in Section 2(d) of the Code of Criminal Procedure in Section 2(d) of the Code of Criminal Procedure and and and contemplated in section 151 of the Electricity contemplated in section 151 of the Electricity contemplated in section 151 of the Electricity Act,2003. Act,2003. Act,2003. (emphasis added) 7. Ultimately, in paragraph 13 of the decision the learned Single Judge held as under : "13. So, the language of the above section and that of Section 151 of the Indian Electricity Act, 2003 is the same. In the instant case, it is alleged that the applicant has committed an offence punishable under Sections 135 and 138 of the Indian Electricity Act,2003. So the complaint So the complaint So the complaint filed filed filed should not have been registered by the police as should not have been registered by the police as should not have been registered by the police as the the the report submitted by the police after investigation of report submitted by the police after investigation of report submitted by the police after investigation of the the the said complaint could not have been taken cognizance said complaint could not have been taken cognizance said complaint could not have been taken cognizance of of of by the Court. It is, therefore, necessary to quash by the Court. It is, therefore, necessary to quash by the Court. It is, therefore, necessary to quash the the the order of registering the crime in question which order of registering the crime in question which order of registering the crime in question which hereby hereby hereby is quashed. is quashed. is quashed. However, it is made clear that the original complainant-Deputy Executive Engineer, Maharashtra State Electricity Board may file the complaint before proper (SIC) or may pursue such other remedy as is open to him in law. Hence, the application is disposed of accordingly." - 8 - (Emphasis added) Thus, the view taken by this court is that the F.I.R lodged by the Deputy Executive Engineer could not have been registered by the police as the cognizance could not have been taken by the court on the basis of the police report. Therefore, the learned Single Judge proceeded to quash the order of registering the crime in question. 8. The learned counsel appearing for the second respondent relied upon clause (e) of section 460 of the said Code of 1973. This provision will at highest cure the legal defect of learned Magistrate taking cognizance on the basis of the police report. However, the matter does not rest here. This court in the case of Dr.Kasim (supra) has held that in view of the express language used in section 151 of the said Act, even the first information report could not have been registered on the basis of the complaint filed by the Deputy Executive Engineer. Thus, what has been held is that the very registration of the F.I.R was bad in law. Obviously, the said defect cannot be cured by clause (e) of section 460 of the said Code. 9. The learned Sessions Judge has derived support from the provisions of the amended section 151 as amended by Electricity (Maharashtra Amendment Act 2005) which came into force from 23rd June 2005. The amended section 151 applies to State of Maharashtra with effect from 23rd June 2005 which - 9 - reads thus : "151"Cognizance of offences 151"Cognizance of offences 151"Cognizance of offences - No Court shall take cognizance of an offence punishable under this Act except - (a) 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; or (b) upon a police report of facts which constitute an offence: . Provided that such police report is based on the First Information Report filed by a person who is authorised to file a complaint under Clause (a)." 10. The reasoning recorded by the learned Sessions Judge is that the action of taking cognizance by the learned Magistrate on the basis of the police report may be wrong and bad in law, but after 23rd June 2005, the learned Magistrate Judge applied his mind and committed the case to the Court of Sessions. The learned Judge opined that the said order passed on 22nd February 2006 of committing the case to the Court of Sessions amounts to taking cognizance on the basis of police report - 10 - which is permissible by amended section 151 of the said Act. The said reasoning is misconceived for more than one reason. Firstly, as held by this court even the F.I.R ought not to have been registered and the registration of F.I.R itself is bad in law. If the very registration of F.I.R was illegal, further action taken on the basis of the said F.I.R cannot be validated by the subsequent amendment to the said Act. The learned Judge has ignored one more provision of amended section 151. As per the amended section 151, cognizance can be taken on the basis of the police report provided the police report is based on the F.I.R filed by a person who is authorised to file the complaint as per clause (a) of section 151. As stated earlier, the first informant in this case is not an officer authorised under clause (a). 11. Thus, the reasoning recorded by the learned Judge is completely erroneous. The second respondent cannot rely upon clause (e) of section 460 in as much as the F.I.R itself could not have been registered by the police in view of the decision of this Court in case of Dr.Kasim (supra). 12. Therefore, the petition must succeed. Accordingly, the impugned order is quashed and set aside and as the said registration of F.I.R was itself illegal, the petitioner stands discharged. 13. This order will not prevent the second respondent-The - 11 - Maharashtra State Electricity Distribution Co.Ltd. for initiating appropriate proceedings in accordance with law. JUDGE JUDGE JUDGE