Kashirayagouda vs The State of Karnataka

Ravi Malimath, J.—Aggrieved by the judgment dated 31.12.2005 passed by the II Additional Sessions Judge and Special Judge, Bijapur in Special Case (KPTCL) No. 7/2005 convicting the accused No. 1 for the offence punishable u/s 135(1)(a)(b) of The Electricity Act, 2003 and sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,13,571/- plus Rs. 11,087/- and in default to suffer simple imprisonment for eight months, the accused/appellant has filed the present appeal. The learned counsel for the appellant/accused contends that irrespective of the material evidence of the prosecution, the entire case is hit by section 135 of The Electricity Act. His case is that on 16.6.2004, the Officers of the Electricity Company came to the flourmill of the appellant and conducted a mahazar and found that he was illegally drawing electricity directly from the pole. On investigation, the charge sheet was filed for the offence punishable u/s 135(1)(a)(b) of The Electricity Act, 2003.

Reliance was placed by the learned counsel for the appellant/accused u/s 151 of Electricity Act, 2003, which reads as follows;

Cognizance of offences. - No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by 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.

Therefore, he contends that in the instant case, there is no private complaint lodged u/s 200 of Cr. P.C. before the Magistrate. The complaint was lodged before the jurisdictional police and the same runs contrary to section 151 of said Act. Therefore, the entire proceedings stand vitiated and hence, he requires to be acquitted.

On the other hand, Sri Sanjaya. Paitl, the learned Addl. SPP for the respondent contends that section 151 of The Electricity Act does not speak of a private complaint. It only states that the complaint should be in writing and made by the designated Officer. Admittedly, herein, the complaint is in writing by the designated officer and hence, these facts satisfy the requirements of section 151 of CPC. On the contrary the appellant''s counsel further pleads that the subsequent proviso that has been added with effect from 15.6.2007, which states as follows;

(Provided that the court may also take cognizance of an offence punishable under this act upon a report of a police officer filed u/s 173 of the Code of Criminal Procedure, 1973)

Heard learned counsels and examined the records. This Court in the judgment dated 6.12.20012 in Criminal Appeal No. 397/2007 (Khursheed Ali v. The State of Karnataka), was concerned with the same issue. Thereto the accused was convicted for the offence punishable u/s 135 of Electricity Act read with section 379 of Indian Penal Code. The offence was in the year 2003 and the information was lodged before the concerned police. Placing reliance on the judgment passed in the Criminal Petition No. 8544/2008 and Criminal Revision Petition No. 2655/2010, it was held that when the offence is committed under the unamended provisions of the Indian Electricity Act, the prosecution was only by way of a private complaint and filing a charge sheet by the police is without jurisdiction and hence, the entire proceedings were quashed. In the present case also the offence took place prior to 2007. The amendment is brought about in 2007. Therefore, the aforesaid judgment is aptly applicable to the case on hand. There is no private complaint u/s 200 of Cr. P.C. in the present case. In view of the findings of law recorded by this Court in the aforesaid judgment the present proceedings stand vitiated. Consequently, the following;

ORDER

The Appeal is allowed.

The judgment of conviction and order of sentence dated 31.12.2008 passed by the II Addl. Sessions Judge & Special Judge, Bijapur in Special Case (KPTCL) No. 7/2005 convicting the accused No. 1/appellant is set-aside.

The appellant/accused is acquitted of all the charges levelled against him.

Ordered accordingly.