Basavaraj and Others vs The State of Karnataka

A.V. Chandrashekara, J—Appellants were accused in a criminal case bearing Special Case No. 1/08 which was pending on the file of Special Judge and II Additional Sessions Judge, Bijapur. Charge sheet had been filed by the police inspector of the Vigilance Wing, HESCOM, Bijapur District, against these appellants for the offence punishable under Section 135(1)(b) of the Electricity Act, 2003, (hereinafter referred to as the Act, for brevity).

The case of the prosecution is that on 14.8.2006 at about 7.00 p.m., CW-1, CWs-4 to 9 and 13 together conducted a raid on the flour mill in the name of the 2nd accused-Kallappa run by the 1st accused-Basavaraj on an oral agreement to run a flour mill. On inspection, it was found that two phase and one neutral wires had been disconnected from the terminal box and directly connected by-passing the meter and connected to the flour mill and two bulbs. Thus the accused were guilty of illegally using electrical energy and committed theft of 7,158 units and thereby caused wrongful loss to the tune of Rs. 40,477/-.

On the basis of the complaint, a case was registered in Crime No. 256/.06 by the vigilance inspector of HESCOM. After concluding investigation, charge sheet was filed against both the accused and cognizance was taken against both the accused for the offence punishable under Section 135(1)(b) of the Act.

In order to bring home the guilt of the accused, the prosecution has examined in all 8 witnesses and 13 exhibits have been got marked apart from 5 material objects. The defence set up by the accused is one of total denial of the allegations leveled against them. After their examination under Section 313, Cr.P.C., the following points have been framed by the learned special judge as found in paragraph 7 of the judgment:

"1) Whether prosecution proves beyond all reasonable doubt that on 14.8.2006 at about 7.00 p.m. when CWs-1, 4 to 8 and 13 together inspected the installation bearing No. KHLMP-56 at Kolhar standing in the name of accused No. 1 taken on agreement by accused No. 2 for running said flour mill, on inspection of the meter it was found that two phase and one neutral wire was disconnected by passing the meter and thereby illegally obstructing electric energy to run 7.5 H.P. and 3 H.P. motors to light two bulbs and thereby committed theft of 7,158 units of electricity worth of Rs. 40,477/- and thereby caused wrongful loss and committed an offence punishable under Section 135(1)(b) of the Electricity Act, 2003?

2) What order?"

Point No. (1) is held in the affirmative and ultimately both the accused have been convicted for the offence stated above, directing them to pay a fine of Rs. 77,100/- and in default, to undergo simple imprisonment for a period of 6 months. It is this judgment of conviction and sentence dated 27.4.2012 which is called in question by filing an appeal under Section 374, Cr.P.C.

The principal submission made by the learned counsel for the accused is that the Inspector of Vigilance Wing of HESCOM was incompetent to entertain the complaint and conduct investigation and therefore both investigation and trial are vitiated. It is argued that the accused could not have been convicted for the offence alleged. He has drawn the attention of this court to a decision of this court in the case of B.C. Suresh Vs. The State of Karnataka, (2013) 2 AKR 826 : (2013) ILR (Kar) 2731 : (2013) 3 KCCR 2041 in a case dealing with Sections 135 to 138, 154 and 156 of the Electricity Act, 2003.

Per contra, learned HCGP, Mr. P.S. Patil has supported the judgment of the trial court on the ground that there is no threshold bar and that the judge has properly analyzed the evidence, keeping in mind the object of the special legislation.

The alleged offence is stated to have been noticed by CW-1 on 14.8.2006 when he conducted a raid of the mill owned by the 2nd accused and run by the 1st accused. The Electricity Act, 2003, is a central legislation and has come into effect from 10.6.2003 and was published in the Gazette Extraordinary Part-I on 10.6.2003. Section 151 of the Act contemplates about cognizance of offences and it was amended by including the proviso vide Act No. 26/07 which has come into effect from 15.6.2007. The said provision is extracted below:

"Sec. 151: No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by the 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.

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.

Provisos inserted with effect from 15.6.2007 by Act No. 26/2007."

On a plain reading of the insertion of the proviso with effect from 15.6.2007, it is evident that the alleged offence dated 14.8.2006 was prior to the amendment. The court can take cognizance of the offence under the Act only on report of the police officer filed under Section 173, Cr.P.C. This is a penal statute and has no retrospective effect. Such being the case, the first proviso to Section 151 of the Act cannot be made applicable to an offence which took place on 14.8.2006, which was apparently prior to the amended act No. 26/27.

Part IV of the Act speaks about offences and penalties. Section 135 contemplates about theft of electricity and if a person is found to have committed theft of electricity in any manner, he/she would be punishable with imprisonment which may extend to 3 years or with fine or with both. Section 151 of the Act specifically mandates that the court cannot take cognizance of an offence punishable under the provisions of the Act except upon a complaint in writing made by the 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.

In an identical case, this court had an occasion to discuss the provisions of Sections 135 and 151 of the Act in the case of B.C. Suresh (supra). Mr. Raja Subramanya Bhat representing the State of Karnataka in the said case had brought to the notice of the court a notification issued by the Government of Karnataka dated 8.1.2004 under Section 151 of the Act. Paragraph 11 of the decision in the case of B.C. Suresh is relevant and is extracted below:

"11. Sri Raja Subrahmanya Bhat would submit, though CW-1-M.K. Guruswamy was working as Section Officer, he had been authorized by the State Government to file a complaint and refers to the notification dated 8.1.2004 issued by the Government under Section 151 of the Act which reads thus:

''All engineers working in O and M, namely, Superintending Engineers, Executive Engineers, Assistant Executive Engineers, Assistant Engineers, Junior Engineers and Assistant Executive Engineers of Vigilance Police Stations are hereby authorized to file complaints and also to institute prosecutions at the jurisdictional police stations and to Vigilance Police Station established at MESCOM, when offences committed or are believed to have been reasonably committed under Sections 135 to 153 of the Electricity Act, 2003."

In the case on hand, CW-1 was the section officer of HESCOM and he chose to file a report to the police who was the SHO for all practical purposes. The ''complaint'' as contemplated under Section 2(d), Cr.P.C. should have been filed by the competent officer as per the notification dated 8.1.2004 issued by the Government. In the light of the complaint being filed by a section officer who was an officer not authorized under law, the very initiation of criminal proceedings was bad in law and consequent investigation and trial are also vitiated. The report submitted by the police inspector in terms of Section 173, Cr.P.C. was outside the purview of Section 135 of the Act which was prevalent as on 14.8.2006. Thus in view of the statutory bar, receipt of first information by the police inspector from CW-1 itself was impermissible. PW-8, Chowkimath who had submitted the final report under Section 173, Cr.P.C. to the court to put the accused on trial, had no competence at all to investigate and submit report, especially in view of the statutory bar under Section 135 of the Act. Thus the judgment of conviction and sentence against these accused by the special court is not sustainable in law. Accordingly the appeal has to be allowed and the judgment of conviction and sentence has to be set aside, and the accused are to be acquitted.

In the result, the following order is passed:

ORDER

The appeal is allowed. The judgment of conviction and sentence passed in Special Case No. 1/08 (K) by the Special Judge and II Additional Sessions Judge, Bijapur, dated 27.4.2012 is set aside. Consequently the accused are acquitted of all the charges leveled against them. If any fine amount is deposited, the same shall be refunded to them after the appeal period is over.