State vs Kausar, Yousef and Vinoda @ Medda

H.S. Kempanna, J.—This revision petition is directed against the order dated 11.11.2008 passed in Spl.C. (Elect) No. 65/2008 by the Additional Sessions and Special Judge, Mandya, wherein, the learned Sessions Judge has passed the following:--

ORDER

(i) It is held that this Court cannot proceed with this case:

(ii) No opinion is expressed on the question whether the offence alleged against the accused is an offence under Sec. 379 IPC;

(iii) Office shall send back the records to the jurisdictional Magistrate with a copy of this order.

The subject matter involved in this revision petition arises in the following way:--

Initially, Koppa Police presented the final report u/s 173 of Cr.P.C. against the respondents/accused alleging that they have committed the offence u/s 379 r/w. 34 of IPC, before the J.M.F.C. at Maddur. The learned Magistrate took cognizance of the offences alleged against the respondents/accused and registered the case as CC No. 1211/2007. Thereafter, on 30.6.2008 the learned A.P.P. attached to the Court of J.M.F.C., Maddur, filed an application u/s 323 of Cr.P.C. r/w. 154(2) of the Indian Electricity Act, 2003, stating that the theft of electric wires amounted to an offence under Sections 135 to 139 of the Indian Electricity Act, 2003, and as said offence is triable by the learned Sessions Judge/Special Judge, it be committed to the Court of Special Judge. Acting on the said submission, the learned Magistrate committed the case to the Court of the Special Judge.

After the case was committed to the Court of Special Judge, the Special Judge finding that he has no. power to take cognizance on committal of such case, heard the learned P.P. on that point and accordingly came to the conclusion that such offences cannot be taken cognizance by him as a Special Judge on committal and proceed with the case. Accordingly, he passed the impugned order as extracted above.

Charge sheet had been filed u/s 379 r/w. 34 of IPC against the respondents/accused before the learned Magistrate. The said offence is triable by the learned Magistrate. If according to the prosecution the accused have committed the offence under the Indian Electricity Act also, it was incumbent upon them to request the Magistrate to permit them to withdraw the charge sheet that had been filed, then present the charge sheet before the learned Special Judge for taking cognizance and to try the accused for. the said offence. In this case, the learned Magistrate has followed different procedure in committing the case to the Court of Special Judge as it is done in the case of the offence triable by the Court of Sessions, which I find he has no jurisdiction to do it and the learned trial Judge was right in passing the impugned order stating that he does not have the jurisdiction to proceed with the case. Therefore, I do not find infirmity or illegality in the order passed by the learned Special Judge calling for interference in this revision petition. Accordingly, it is dismissed.