IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 Crl.MC.No. 4541 of 2010() ------------------------------------- CC.NO.2/2008 OF ADDL.DISTRICT & SESSIONS COURT,N.PARAVUR .. (CRIME NO.111/2003 OF KALAMASSERY POLICE STATION, ERNAKULAM DISTRICT) ....... PETITIONER(S): SOLE ACCUSED: --------------------------------------------------- K.M.MOHAMMED, KARIAPPILLY HOUSE, PATHADIPALAM, EDAPPALLY, KOCHI-24. BY ADV. SRI.AMJAD ALI RESPONDENT(S): STATE/COMPLAINANT: -------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTING STATION HOUSE OFFICER, KALAMASSERY POLICE STATION, ERNAKULAM DISTRICT. 2. ASSISTANT ENGINEER, K.S.E.B. ELECTRICAL SECTION, THEVEKKAL, KANGARAPADY-682 021. 3. DEPUTY CHIEF ENGINEER, ANTI POWER THEFT SQUAD, CENTRAL REGION, POWER HOUSE ROAD, ALUVA-683 101. 4. STATE OF KERALA, REPRESENTED BY HOME SECRETARY, HOME (L) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 & R4 BY PUBLIC PROSECUTOR SRI. P.A.SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.4541 OF 2010 --------------------------------------------- Dated 10th December, 2010 O R D E R Petitioner is the accused in C.C.2/2008 now pending before Additional Sessions Court, North Paravur, taken cognizance for the offences under Sections 39 and 44 of Indian Electricity Act and Section 379 of Indian Penal Code. Case was originally taken cognizance by Judicial First Class Magistrate-II, Aluva as C.C.1192/2003 on the final report dated 30/4/2003. Subsequently, the case was transferred to Sessions Court. It is now pending as C.C.2/2008. Petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that cognizance could not have been taken on a final report, in view of Section 151 of Crmc 4541/10 2 Electricity Act and an offence under Section 379 of Indian Penal Code will not lie. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. As held by this Court in Paramasivam v. Union of India (2007 (2) KLT 733) an offence under Section 379 of Indian Penal Code will not lie as electricity is not a movable property to be stolen. The only question is whether cognizance could have been taken in 2003, on a final report submitted under Section 173(2) of Code of Criminal Procedure. As held by this court in Paramasivam's case (supra), in view of Section 151 of Electricity Act, cognizance cannot be taken on a final report before insertion of Section 151 A of Electricity Act. Section 151 A of Electricity Act was inserted only on 15/6/2007. In such Crmc 4541/10 3 circumstances, cognizance taken can only be quashed. Petitioner has also pointed out that by Annexure-F, Government has already conveyed the decision to withdraw the case when it was pending before Judicial First Class Magistrate-II, Aluva and in such circumstances, it is not in the interest of justice to continue the prosecution. Petition is allowed. Cognizance taken in C.C.2/2008 on the file of Additional Sessions Court, North Paravur is quashed. But it is made clear that quashing of the cognizance taken, will not prevent the Court from taking cognizance in view of Section 151 A of Electricity Act after 15/6/2007. M.SASIDHARAN NAMBIAR, JUDGE. uj.