Vijay Bhagwan Shetty vs The State Of Maharashtra
2008 Latest Caselaw 78 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL WRIT PETITION NO.2088 OF 2006

    Vijay Bhagwan Shetty                                            ...Petitioner
          vs.




                                                                               
    1.The State of Maharashtra
    2.Maharashtra State Electricity
      Distribution Co.Ltd.                                          ...Respondents




                                                      
    Mr.Nitin Pradhan with Ms Shubhada Khot for the petitioner
    Mr.D.P.Adsule A.P.P. for State
    Mr.L.M.Acharya for Respondent No.2.




                                                     
                                       CORAM:   A.S.OKA,J.

DATE : SEPTEMBER 26,2008

ORAL JUDGMENT:

1. The submissions of the learned counsel for the parties

were

With

heard on 27th August 2008 and the Judgment was reserved.

a view to appreciate the submissions made by the learned

counsel appearing for the parties, it will be necessary to

refer to the facts of the case in brief.

2. One Mr.Dharmaraj Pandharinath Pethkar, Deputy Executive

Engineer of Flying Squad of the Maharashtra State Electricity

Board lodged F.I.R on 5th September 2003 with Bhor Police

Station alleging commission of offence under section 135 and

138 of the Electricity Act,2003 (hereinafter referred to as

the said Act). The allegation made in the F.I.R was as

regards theft of electricity. On completion of the

investigation, on 29th September 2003, the concerned police

officer filed a charge-sheet under section 173 of the Code of

Criminal Procedure,1973. Cognizance was taken by the learned

Judicial Magistrate First Class on the basis of the said

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report. On 22nd February 2006, the learned Magistrate

committed the case to the court of Sessions. An application

for discharge was filed by the petitioner before the Sessions

Court which has been dismissed by the order dated 28th July

2006 by the Sessions Court. By this petition under Article

227 of the Constitution of India read with section 482 of the

Code of Criminal Procedure,1973, the petitioner has prayed for

quashing the proceedings of the case.

3. The learned counsel for the petitioner has placed reliance

on the section 151 of the said Act of 2003. He submitted that

section

151 of the said Act provides that no court shall take

cognizance of the offence punishable under the said Act except

upon a complaint in writing made by the appropriate Government

or appropriate Commission or any of their officer authorised

by them or Chief Electrical Inspector or Electrical Inspector

or licensee or the generating company as the case may be for

this purpose. The said section 151 of the said Act was

amended with effect from 23rd June 2005. He submitted that

thus till 23rd June 2005, it was not open for any court to

take cognizance of the offence on a police report as done by

the learned Magistrate in this case. He pointed out that the

said amendment to section 151 permitting cognizance to be

taken upon the police report was brought on the statute book

with effect from 23rd June 2005. He submitted that in the

present case, cognizance was taken long before on 23rd June

2005. He, therefore, submitted that the entire proceedings

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were bad in law. He placed reliance on the decision of this

court in case Shakambari Industries, Akola and another Vs.

State of Maharashtra and another [2006 (2) Mh.L.J. page 170]

as well as another decision of this court in the case of

Dr.Kasim s/o Maulana Razzak Saheb Chimthanwala Vs. State of

Maharashtra (in Criminal Application No.655 of 2004 decided on

12th March 2004).

4. The learned counsel for the second Respondent submitted

that even assuming that the cognizance was wrongly taken by

the learned Magistrate, in view of clause (e) of section 460

of

be

the said Code of 1973, the proceedings of the case

set aside merely on the ground that the learned Magistrate cannot

was not so empowered. He submitted that in any case on 22nd

February 2006, when the learned Magistrate committed the case

to the court of Sessions, in view of the Maharashtra Amendment

to section 151 of the said Act, on that day the learned

Magistrate had power to take cognizance on the basis of the

police report. He, therefore, submitted that no interference

was called for and the learned Sessions Judge has rightly

rejected the application for discharge.

5. I have carefully considered the submissions. Section 151

of the said Act before the Maharashtra Amendment was as under:

"151.Cognizance

151.Cognizance of offences - No Court shall take cognizance

of an offence punishable under this Act except upon a

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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 or licensee or the generating company, as the

case may be, for this purpose."

The learned Sessions Judge has rightly held that the said

section was mandatory. Under the said section, even the

complaint in writing has to be filed by the Appropriate

Government or Appropriate Commission or any of their Officer

authorised by them or the Chief Electrical Inspector or

Electrical

the case may be.

Inspector or licensee or the generating company as

In the present case, the first informant was

a Deputy Executive Engineer of the Maharashtra State

Electricity Board. Obviously, the said Officer was not an

Officer authorised either by the Appropriate Government, or

Commission as neither the Maharashtra State Electricity Board

nor the second respondent-company can be termed as Appropriate

Commission. The first informant is neither the Chief

Electrical Inspector nor an Electrical Inspector. Obviously,

he was not the licensee or the generating company. On this

aspect, it will be necessary to refer to the decision of the

learned Single Judge of this court in case of Shakambari

(supra). This was a case where the Assistant Engineer had

lodged F.I.R relating to commission of an offence under

section 135 of the said Act. The learned Single Judge of this

Court held that cognizance of the offence under the said Act

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could have been taken only upon a complaint and not upon a

police report and therefore, charge-sheet cannot be filed

under the said Act. Therefore, prayer for quashing was

granted by this court.

6. In the case of Dr.Kasim (supra), F.I.R was filed by the

Deputy Executive Engineer of the Flying Squad. Even in the

said case reliance was placed on section 151 of the said Act.

It was contended that cognizance could not have been taken on

the basis of the police report. It will be necessary to refer

to paragraphs 10 and 11 of the said decision which read thus :

    "10. From           the
                                
                               perusal         of    Section 151           of     the      Electricity
                               
            Act,2003,         it        is very clear that the said section is                             in

            fact        not    meant         to     decide as to whether                the       case     is

            cognizable             or        not.         It     only      says         under          which
      


            circumstances,              the       court    can take          cognizance           of     the
   



            offences          punishable under the said Act.                        The words           used

            therein are "except upon a complaint in writing".                                       So, it

            is     necessary that the complaint which is required to                                       be





            filed        by    a particular person mentioned in                          the      section

            must        be in writing.             The question arises whether such                          a

            complaint         is        to    be filed before the police                     so     as     to

enable them to register crime and investigate the same or

whether the complaint contemplated in this Section 151 is

a complaint as defined in Section 2(d) of the Criminal

Procedure Code. Admittedly, the word 'complaint' is not

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defined in the Electricity Act,2003 so also the word

"Court" is also not defined. Of course, from the perusal

of the said Act, it appears that special Courts are to be

constituted as per Section 153 of the said Act and they

are empowered to try the case under the said Act. From

perusal of Section 155, it appears that save as otherwise

provided in the said Act provisions of Code of Criminal

Procedure,1973 in so far as they are not inconsistent

with the provisions of this Act shall apply to the

proceedings before the Special Court and for the purpose

of provisions of said enactment, the Special Court shall

be

deemed to be the Court of Sessions.

this position, one can see that the word 'complaint' used So, considering

in Section 151 is not in a general sense as 'grievance'.

But, it is in fact a complaint as contemplated by section

29d) of the Code of Criminal Procedure,1973. Section

2(d) of the Code of Criminal Procedure,1973 says that :

. "complaint" means any allegation made orally or in

writing to a Magistrate, with a view to his taking action

under this Code, that some person, whether known or

unknown, has committed an offence, but does not include a

police report.

11. So, even if the complaint is filed before the police for

the offence punishable under section 135 of the

Electricity Act and after the investigation report is

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submitted by the police to the Court, still then

cognizance of the same cannot be taken before the report

of the police officer cannot be said to be a complaint as

defined in Section 2(d) of the Code of Criminal Procedure

and contemplated in section 151 of the Electricity

Act,2003.

(emphasis added)

7. Ultimately, in paragraph 13 of the decision the learned

Single Judge held as under :

"13. So, the language of the above section and that of Section

of the Indian Electricity Act, 2003 is the same. In

the instant case, it is alleged that the applicant has

committed an offence punishable under Sections 135 and

138 of the Indian Electricity Act,2003. So the complaint

filed should not have been registered by the police as

the report submitted by the police after investigation of

the said complaint could not have been taken cognizance

of by the Court. It is, therefore, necessary to quash

the order of registering the crime in question which

hereby is quashed. However, it is made clear that the

original complainant-Deputy Executive Engineer,

Maharashtra State Electricity Board may file the

complaint before proper (SIC) or may pursue such other

remedy as is open to him in law. Hence, the application

is disposed of accordingly."

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(Emphasis added)

Thus, the view taken by this court is that the F.I.R lodged by

the Deputy Executive Engineer could not have been registered

by the police as the cognizance could not have been taken by

the court on the basis of the police report. Therefore, the

learned Single Judge proceeded to quash the order of

registering the crime in question.

8. The learned counsel appearing for the second respondent

relied upon clause (e) of section 460 of the said Code of

1973. This provision will at highest cure the legal defect of

learned

police Magistrate

report.

ig taking cognizance on the

However, the matter does not rest here.

                                                                               basis       of     the

                                                                                                 This
                           

court in the case of Dr.Kasim (supra) has held that in view of

the express language used in section 151 of the said Act, even

the first information report could not have been registered on

the basis of the complaint filed by the Deputy Executive

Engineer. Thus, what has been held is that the very

registration of the F.I.R was bad in law. Obviously, the said

defect cannot be cured by clause (e) of section 460 of the

said Code.

9. The learned Sessions Judge has derived support from the

provisions of the amended section 151 as amended by

Electricity (Maharashtra Amendment Act 2005) which came into

force from 23rd June 2005. The amended section 151 applies to

State of Maharashtra with effect from 23rd June 2005 which

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reads thus :

"151"Cognizance 151"Cognizance of offences - No Court shall take cognizance

of an offence punishable under this Act except -

(a) 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 or licensee or

the generating company, as the case may be, for this

purpose; or

(b) upon a ig police report of facts which constitute an

offence:

. Provided that such police report is based on the

First Information Report filed by a person who is

authorised to file a complaint under Clause (a)."

10. The reasoning recorded by the learned Sessions Judge is

that the action of taking cognizance by the learned Magistrate

on the basis of the police report may be wrong and bad in law,

but after 23rd June 2005, the learned Magistrate Judge applied

his mind and committed the case to the Court of Sessions. The

learned Judge opined that the said order passed on 22nd

February 2006 of committing the case to the Court of Sessions

amounts to taking cognizance on the basis of police report

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which is permissible by amended section 151 of the said Act.

The said reasoning is misconceived for more than one reason.

Firstly, as held by this court even the F.I.R ought not to

have been registered and the registration of F.I.R itself is

bad in law. If the very registration of F.I.R was illegal,

further action taken on the basis of the said F.I.R cannot be

validated by the subsequent amendment to the said Act. The

learned Judge has ignored one more provision of amended

section 151. As per the amended section 151, cognizance can

be taken on the basis of the police report provided the police

report is based on the F.I.R filed by a person who is

authorised

151.

to file the complaint as per clause (a) of section

As stated earlier, the first informant in this case is

not an officer authorised under clause (a).

11. Thus, the reasoning recorded by the learned Judge is

completely erroneous. The second respondent cannot rely upon

clause (e) of section 460 in as much as the F.I.R itself could

not have been registered by the police in view of the decision

of this Court in case of Dr.Kasim (supra).

12. Therefore, the petition must succeed. Accordingly, the

impugned order is quashed and set aside and as the said

registration of F.I.R was itself illegal, the petitioner

stands discharged.

13. This order will not prevent the second respondent-The

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Maharashtra State Electricity Distribution Co.Ltd. for

initiating appropriate proceedings in accordance with law.

JUDGE