Case: Vishal Agrawal  Vs. Chattisgarh State Electricity Board &amp;Anr

This issue has arisen in the following set of facts:3. The respondent, viz. Chhattisgarh State Electricity Board (hereinafter to be referred as the Board) is the supplier of electricity in the State of Chhattisgarh. The appellants are the consumers of the Electricity and getting supply thereof through the Electricity connection provided by the Board. As per the Board, the appellants were found committing theft of the electricity which was revealed on 23.3.2006 when the Electricity meter of the appellant was inspected by the Inspection Team of the Board. It transpired that instead of the approved 55.204 KW, the appellants were using load of 59.810 KW and the meter was also tampered with. The Board made a complaint to the Station House Officer (SHO), Police Station, Civil Lines, Bilaspur. On the aforesaid allegations with request to the SHO to register a FIR against the appellants on the basis of a complaint dated 30.3.2006, the FIR was registered by the SHO on 31.3.2006 being FIR No. 227 of 2006 under Section 135/126 of the Act. After investigating into the matter, officer in-charge of the Police Station filed the challan before the Special Judge, Bilaspur who passed orders dated 30.6.2006 taking cognizance of offence under the aforesaid provisions of the Act4. Against this order, the appellants filed quashing petition before the High Court on the ground that the Assistant Engineer had no authority to make any written complaint and the Special Judge could not have taken cognizance of the offence without complying with the provisions of Section 151 of the Act. This petition was disposed of by the High Court with a direction to the appellants to approach and raise the said objection before the Special Judge. On that basis, the aforesaid plea was pressed before the Special Judge as well by filing an application to this effect. The contention of the appellants was found convincing by the Special Judge who passed orders dated 26.9.2006 thereupon holding that since the complaint had not been made by the officers named in Rule 9 of the Chhattisgarh State Electricity Rules, 2006, cognizance thereof could not be taken. As a sequittor, the appellants were discharged from the case. At the same time liberty was also given to the Board to take appropriate action in accordance with law5. The Board did not accept the aforesaid order and challenge the same before the High Court by filing Criminal Revision on 4.2.2007. Within four months thereof the Electricity Act was amended by inserting, inter alia, Sections 151(A) and 151(B) to the said Act with effect from 15.6.2007. The High Court has by impugned order dated 26.2.2008, reversed the orders of the Special Judge holding that as per Rule 12 of Chhattisgarh State Electricity Rules, the police has been authorised by the Central Government to forward the complaint received by the officers authorised under Section 151 of the Electricity Act to the concerned Court and, therefore, the complaint was validly instituted6. Before we take note of the contentions advanced before the High Court and the manner in which the High Court has dealt with the same, it would be apt to reproduce relevant provisions of the Electricity Act as well as Chhattisgarh Electricity Rules, interpretation whereof is involved in the present case7. Section 151 of the Act, as it existed before the amendment, is as follows:No Courtshall take cognizance of an offence punishable under this Act except upon a complaint in writing made by appropriate government or appropriate Commissioner 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 purposeIn exercise of powers conferred by Section 176 ofthe Electricity Act, 2003 the Central Government framed Electricity Rules, 2005, Rule 12 reads thus:-12. Cognizance of the Offence –(1) The police shall take cognizance of the offence punishable under the Act on a complaint in writing made to the police by the appropriate Government or the appropriate Commission or any of their officers authorized by them in this regard or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be(2) The police shall investigate the complaint in accordance with the general law applicable to the investigation of any complaint. For the purposes of investigation of the complaint the police shall have all the powers as available under theCode of Criminal Procedure, 1973(3) The police shall after investigation, forward the report along with the complaint filed under sub-clause (1) to the Court for trial under the Act(4) Notwithstanding anything contained in sub-clause (1), (2) and (3) above, the complaint for taking cognizance of an offence punishable under the Act may also be filed by the appropriate Government or the appropriate Commission or any of their officers authorized by them or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be directly in the appropriate Court(5) Notwithstanding anything contained in theCode of Criminal Procedure,court may take cognizance of an offence referred to in Sections 135 to 139 of the Act without the accused being committed to it for trial(6) The cognizance of the offence under the Act shall not in any way prejudice the actions under the provisions of the Indian Penal CodeThe principal Electricity Act, 2003 was further amended bythe Electricity (Amendment) Act, 2007 and apart from other amendments in Section 151 of the prinicipal Act was also amended and provisions in Sections 151, 151(A), 151 (B) were inserted. In the Statement of Objects and Reasons for amending the Act, it was stated as under:4. As per the provisions contained in Section 151 of the Act, the offences relating to theft of electricity, electric lines and interference with the meters are cognizable offences. Concerns have been expressed that the present formulation of Section 151 stands as a barrier to investigation of these cognizable offences by the police. It is proposed to amend Section 15 so as to clarify the position that the police would be able to investigate the cognizable offences under the Act. The expedite the trial before the Special Court, it is also proposed to provide that a Special Court shall be competent to take cognizance of an offence without the accused being committed to it for trial1. Short title and commencement. (1) This act may be calledthe Electricity (Amendment) Act, 20072. It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:15. Amendment of Section 151. - In Section 151 of the Principal Act, the following provisos shall be inserted, namely:-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 theCode of Criminal Procedure,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 trial16. Insertions of new Sections 151-A and 151-B – After Section 151 of the principal act, the following sections shall be inserted namely:-151-A. Power of police to investigate – For the purposes of investigation of an offence punishable under this Act, the police officer shall have all the powers as provided in Chapter XII of theCode of Criminal Procedure,151-B Certain offences to be cognizable and non-bailable. - Notwithstanding anything contained in theCode of Criminal Procedure,(2 of 1974), an offence punishable under Sections 135 to 140 or Sections 150 shall be cognizable and non-bailable8. As per unamended Section 151 of the Act the cognizance of the offence punishable under the Electricity Act can be taken only when complaint is made in writing by:(iii) Any of their officer authorized by them, or(iv) A Chief Electrical Inspector,(vii) The Generating Company, as the case may be9. It was the submission of the appellant that the complaint could be made to the Court by the appropriate Government or any of its officers so authorised (as other persons specifically named to make such complaints under Section 151 were not relevant). It was argued that the State of Chhattisgarh has framed Chhattisgarh State Electricity Rules, 2005 in exercise of powers under Section 151 of the Act. As per Rule 9 of the said Rules, the persons who are authorized to make the written complaints were either Assistant Electrical Inspector of Chief Electrical Inspectorate of the State Government or an officer not below the rank of Junior Engineer of the Board or Distribution Licensee. It was the submission of the appellant that in the present case the complaint was made by the Assistant Engineer who was below the rank of Junior Engineer and, therefore, was not authorised to lodge the complaint under Section 151. It was also argued that as per the provisions of Section 151 of the Act, the complaint was required to be made in the Court and not to the police and both these mandatory conditions contained in Section 151 of the Act were not adhered to10. The High Court rejected the aforesaid contention holding that Rule 12 of the Electricity Rules authorised the police to take cognizance of the offence punishable under the Act and, therefore, it was not necessary for the Board to file the complaint under Section 151. The High Court also held that by adding proviso to Section 151 along with insertion of Sections 151(A) and 151 (B) vide Electricity (Amendment) Act, 2007, this position was made abundantly clear namely cognizance of an offence punishable under the Act could be taken upon a report of police officer filed under Section 173 of the

Court's reasoning:
21. It is apparent from the reading of Section 4 that provisions of the Code would be applicable where an offence under theIPC or under any other law is being investigated, inquired into, tried or otherwise dealt with. These offences under any other law could also be investigated, inquired into or tried with according to the provisions of the Code except in case of an offence where the procedure prescribed there under is different than the procedure prescribed under the Code. It is so specifically provided under Section 155 of the Electricity Act also. Thus, it is not a case where any special or different procedure is prescribed. Rather, the procedure contained the Code is made applicable for the offences to be tried under the Electricity Act as wellWe are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondent alleging commission of offences under Sections 419, 420, 467 and 468IPC by them in course of the proceeding of a civil suit, on the ground that Section 195(1)(b)(ii) CrPC prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 CrPC it is manifest that it comes into operation at the stage when the court intends to take cognizance of an offence under Section 190(1) CrPC; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding under the Code is not in any way controlled or circumscribed by Section 195 CrPC. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) CrPC, but nothing therein deters the court from filing a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 CrPC. The judgment of this Court in Gopalakrishna Menon v. D. Raja Reddy; 1983 (3) SCR 836  on which the high Court relied, has no manner of application to the facts of the instant case for there cognizance was taken on a private complaint even though the offence of forgery was committed in respect of a money receipt produced in the civil court and hence it was held that the court could not take cognizance on such a complaint in view of Section 195 CrPCNot only are we bound by this judgment but we are also in complete agreement with the same. Section 195 and 340 do not control or circumscribe the power of the police to investigate under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into place and the court would not be competent to take cognizance. However, that court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided the procedure laid down in Section 340 of the Criminal Procedure Code is followed. Thus no right of the respondent much less the right to file an appeal under Section 341, is affected23. Thus, the clear principle which emerges from the aforesaid discussion is that even when a Magistrate is to take cognizance when a complaint is filed before it, that would not mean that no other avenue is opened and the complaint/FIR cannot be lodged with the police. It is stated at the cost of repetition that the offences under the Electricity Act are also to be tried by applying the procedure contained in the Code. Thus, it cannot be said that a complete machinery is provided under the Electricity Act as to how such offences are to be dealt with. In view thereof, we are of the opinion that the respondents Counsel is right in his submission that if the offence under the Code is cognizable, provisions of Chapter XII containing Section 154 Cr.P.C. and onward would become applicable and it would be the duty of the police to register the FIR and investigate into the same. Sections 135 and 138 only prescribe that certain acts relating to theft of electricity etc. would also be offences. It also enables certain persons/parties, as mentioned in Section 151, to become complainant in such cases and file complaint before a Court in writing. When such a complaint is filed, the Court would be competent to take cognizance straightway. However, that would not mean that other avenues for investigation into the offence which are available would be excluded. It is more so when no such special procedure for trying the offences under the Electricity Act is formulated and the cases under this Act are also to be governed by theCode of Criminal Procedure25. In view of the aforesaid discussion, we hold that the decisions of Kerala High Court as well as Calcutta High Court and Madras High Court in Chacko, A.K. & Anr. Vs. Assistant Executive Engineer, K.S.E.B. (2010) 2 KLJ 569 ; Biswanath Patra Vs. Divisional Engineer AIR 2007 Cal 189 ; Ranjeet Kr. Bag Vs. State of West Bengal (2006) 1 C CrlJ (Cal) 334; Paramasivan vs. Union of India (2007) 2 KLT 733; Kumaran Chemicals (P) Ltd. Rep. By its Managing Partner D. Thillairaj and Ors. vs. Government of Pondicherry rep. by the Inspector of Policelay down correct law and the view taken by the High Court of Delhi in Abhay Tyagi v. State NCT of Delhi & Anr. and Asish Kumar Jain vs. State of Jharkhand (2010) CriLJ 271  is hereby approved16. Yet, there is one more reason given by the Court to hold that FIR with the police officer would be competent, as can be found from the following extracts from the said judgment:There is one more reason why the High Courts order can be faulted. The High Court has clearly ignored the First Schedule of theCode of Criminal Procedureand more particularly the second part thereof, which is under the head Classification of Offences against other laws. The second entry reads as follows:If punishable with imprisonment for three years, and upwards but not more than seven years, then such offences are held to be cognizable,e and triable by the Court of Magistrate of the first classTherefore, the High Court ought to have considered this provision which makes the first information report acceptable by the police in the sense that the police could investigate into the matter and if found guilty could have also filed a report under Section 173before the Court on which the Court could have taken the cognizance of the offence17. In view of the aforesaid judgment of this Court, conclusively holding that amendment to Section 151 is clarificatory in nature and further that notwithstanding the provisions of Section 151 of the Act, a FIR could be filed with the police, the matter stands clinched in favour of the Board. However, at the same time we would like to elaborate the view taken by this Court in the aforesaid judgment.