Balaji Engineering Works and Another vs The Managing Director, Gulbarga Electric Supply Co. and Others

A.N. Venugopala Gowda, J.—Petitioners are carrying on Industrial activity in Cotton Ginning in the Industrial Area, Bellary. Petitioners have obtained power sanction for industrial purpose from the first Respondent. Vigilance squad of first Respondent visited the Petitioner''s establishment on the night of 02.12.2008 and found that there was theft of electrical energy by the Petitioners. The members of the vigilance squad who is of the rank of Assistant Executive Engineer, filed a complaint before the third Respondent/Police Sub-Inspector, Vigilance Police Station, GESCOM, Bellary alleging that the Petitioners have committed theft of electrical energy to the tune of Rs. 59,15,775/- and hence, action in accordance with law may be taken. The third Respondent registered a case in Crime No. 510/2008 on 03.12.2008 for the offences under Sections 135(1) and 152 of the Electricity Act, 2003 (for short the ''Act''). Investigation was undertaken. Before investigation could be completed and the charge-sheet, if any could be filed, the Petitioners have filed this petition to quash FIR No. 510/2008 dated 03.12.2008 of the third Respondent, submitted to the District and Sessions Court, Bellary with a further prayer to direct the Respondents not to exercise any power against the Petitioners.

Incidentally, Petitioners had filed W.P. No. 63715/2009 against the GESCOM. The said petition was dismissed on 14.07.2009. The Writ Appeal is stated to have been filed. Petitioners have also filed W.P. No. 63010/ 2009 in which direction was issued to GESCOM, to provide electric supply to the Petitioners.

Sri. V. Lakshminarayana, learned Advocate appearing for the Petitioners contended that since the ''Act'' is special legislation, the procedure prescribed u/s 151 of the Act would prevail over Sections 4(2) and (5) of the Code of Criminal Procedure, 1973 (for short the ''Code''). He submitted that in view of the provision u/s 151 of the Act, which specifically provides for taking of cognizance only upon the complaint, does not include the complaint defined u/s 2(d) of the Code and the police report explained in terms of Section 173(2) of the Code. According to him, by reading Section 2(d) of the Code read with Section 151 of the Act and by applying rigor of Section 4(2) and Section 5 of the Code, taking cognizance upon police report is totally barred under the Act. It was submitted that the legislature is not intended to conferment of the power of the Magistrate, taking cognizance upon the report and therefore, filing of FIR is wholly without authority of the law. In short, the contention is that, in view of Section 151 of the Act, taking cognizance is permissible only upon the complaint and not on the police report. Learned Counsel submitted that in terms of the investigation No. HB 173 POP 2003 dated 11.09.2003 of the Government of Karnataka of Vigilance Office which have been designated as the police station is the office of the Deputy Superintendent of Police (Vigilance) GESCOM, since the area in question falls in the revenue jurisdiction, Bellary. It was submitted that the matter falls in the jurisdiction of the authority at Sl. No. 34 of the said notification. It was pointed out that the complaint was not lodged with the authority at Sl. No. 34 of the said notification, which has been lodged before the third Respondent i.e., the Inspector of Police (Vigilance) GESCOM which is not a competent office to register a case and forward the FIR to the Court. Learned Counsel contended that the proceedings initiated by the authorities of the first Respondent before the third Respondent being wholly illegal, the proceedings pending with the third Respondent for investigation and forwarded to the Court is an abuse of process and harassment to the Petitioners and hence, may be quashed.

Sri. P.H. Gotkhindi, learned High Court Government Pleader appearing for the third Respondent, contended that the complaint was filed before the third Respondent by the members of the Vigilance team of the first Respondent which inspected the Petitioners establishment and it noticed the alleged theft of electrical energy. According to him, Government of Karnataka by issuing the notification dated 11.09.2003 in exercise of the powers conferred by Clause (5) of Section 2 of the Code i.e., in supersession of the earlier notification dated 25.02.2003, as declared the places specified in Column 2 of the table thereunder as the police station and included the areas mentioned in the corresponding entries in Column 3 to be the police station specified in column 2. He invited my attention to the entries at Sl. Nos. 28 and 34 of the notification and contended that the complaint has been rightly lodged before the third Respondent which is declared/specified police station in respect of the area wherein the Petitioners are carrying on their industrial business. Reference was also made to the amended Act i.e., Electricity (Amendment) Act, 2007 (26 of 2007) 25.08.2007 w.e.f. 25.07.2007 particularly to the introduction of proviso u/s 151 and the provision under Sections 151A and 151B of the Act. He contended that after introduction of the proviso to Section 151 of the Act, the restriction contained u/s 151 of the Act has been diluted. It was also contended that Section 151A empowered the police to investigate the offence under the Act and the police officer shall have all the powers as provided under Chapter 12 of the Code. It was also contended that in view of Section 151B, the offence punishable under Sections 135, 140 or 150 shall be cognizable and non-bailable notwithstanding anything contained in the Code. It was submitted that the offence alleged against the Petitioners is one falling u/s 135 of the Act and it is a cognizable, non-bailable offence and hence, there is no illegality in receiving the complaint, registering the crime and in forwarding the FIR to the Court. Alternatively, it was contended that the defect if any is a curable one, keeping in view the provision contained u/s 460(e) read with Section 190(1) (c) of the Code. He concluded that the Petitioners intended to protract the proceedings, delay the investigation and being wholly devoid of merits may be rejected in limine.

Smt. Pushpavathi M. Dhongadi, learned Advocate appearing for Respondents 1 and 2 contended that the Vigilance team having inspected the industrial unit of the Petitioners having found theft of electrical energy, the value of which is to the extent of Rs. 59,15,775/-, member of the Vigilance team has filed written complaint before the third Respondent, declared police station. She submitted that the offence committed by the Petitioners for which the complaint has been lodged is a cognizable and non-bailable one and hence, after registering the case by the third Respondent, FIR has been sent to the jurisdictional Court. The third Respondent office is jurisdictional police station in terms of the notification dated 11.09.2003 (supra) and hence petition being devoid of merit may be dismissed. She adopted the submissions made by the learned High Court Government Pleader in all other aspects.

In view of the rival contentions, the point for consideration is:

Whether the FIR has been filed by the competent authority?

Government of Karnataka in exercise of the powers conferred u/s 2 of the Code and in supersession of the notification No. HD 02 POP 02 dated 25.02.2003 has declared the places specified in Column 2 of the table below as police station and include the local area specified in the corresponding entries in Column 3 thereof within the limits of the police station specified in Column 2. The relevant part of the table in the said notification is as under:

(Table omitted.... Ed.)

The Police Stations specified in column (2) of the table shall have powers and jurisdictions only in respect of the offences committed under the provisions of:

(i) The Electricity Act, 2003 (Central Act 36 of 2003)

(ii) Sections 379, 406, 407, 408, 409, 34 and 109 of the Indian Penal Code, 1860.

(iii) The Prevention of Corruption Act, 1988.

According to the learned Counsel for the Petitioners, the competent authority who can file the FIR is the office/officer shown at Sl. No. 34 of the notification. According to the learned Counsel for the Respondent, Office/Officer who can file the FIR in respect of the allegation made against the Petitioners are at Sl. No. 28 of the notification.

Part 14 of the Act, which is Sections 135, 152 is with regard to the offences of penalties, theft of electricity has been put u/s 135 of the Act. Cognizance of the offences has been provided u/s 151 of the Act which after the amendment w.e.f. 15.06.2007 read as follows:

....

Sections 151A and 151B were inserted in the amendment Act 26 of 2007 w.e.f. 15.06.2007 and the same are as hereunder:

....

If theft of electricity is found to have been committed, cognizance can be taken by a Court only 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 of licensee or the generating Company as the case may be. That was the position prior to the amendment inserted under Act 26 of 2007 dated 25/08/2007 with effect from 15/06/2007. In view of the provisos inserted to Section 151, the Court can also take cognizance of an offence punishable under the Act upon the report of a Police Officer filed u/s 173 of the Code. The police have been empowered to investigate the offence punishable under the Act by conferring upon them all the powers as provided under Chapter XII of the Code by way of insertion of Section 151 A, which has come into the constitute book with effect from 28/ 05/2007. All the offences Under Sections 135 to 140 or Section 150 have been made cognizable and non-bailable offences under the Act, notwithstanding anything contained in the Court, by virtue of the insertion of Section 151B in the statute book.

According to the first Respondent, the theft of electrical energy in the Establishment of Petitioners'' was detected on 02/12/2008 and the complaint was lodged by a member of the Vigilance team with the 3rd Respondent on 03/12/2008. Indisputably, the offence falls within Section 135 of the Act and in view of Section 151B, it is cognizable and non-bailable offence. Such an offence can be investigated by the Police Officer as in the manner provided u/s 151 A. In view of the Notification dated 11/09/2003 (supra), the local areas of the police station included with the K.P.T.C.L. Vigilance Officer specified in column No. 2 with respect to the Revenue District of Bellary is the 3rd Respondent. The Officer at Sl. No. 28 has been conferred with the jurisdiction of the revenue jurisdiction of Bellary and other taluks and not the Revenue District of Bellary. Since the 3rd Respondent has been declared as the Vigilance Office in respect of the Bellary District, the complaint having been filed before the 3rd Respondent, has been received and case registered on account of the offence falling within the local area of police station of the 3rd Respondent. Since the 3rd Respondent has the jurisdiction, that after registration of the case and taking up the matter for investigation, FIR was prepared and sent to the jurisdictional Court. Keeping in view the said statutory provisions and the Notification dated 11/09/2003, the 3rd Respondent is the competent person to file the F.I.R. and has filed the same. Hence, it is not a case of want of competency on the part of the 3rd Respondent to file the FIR to exercise the jurisdiction of this Court u/s 482, Code of Criminal Procedure and quash the proceedings.

No other point was urged for consideration. For the foregoing reasons, the petition is devoid of merit and stands dismissed.