Bombay High Court
Zuber Baig Kalim Baig vs State Of Mah & Anr on 15 September, 2016
Bench: V.K. Jadhav
cran2568.05
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2568 OF 2005
Zuber Baig s/o Kalim Baig,
Age: 25 years, Occu: Business,
R/o. Ashti, Tq. Ashti,
District Beed ...Applicant
versus
1. The State of Maharashtra
Through Public Prosecutor,
High Court, Aurangabad
2. Ganesh s/o Keshavlal Panpatil,
Age 34 years, Occ. Service
MSEB, A/401, Nikhileshwara Near
Vinus Cinema, Section 25, Ushanagar,
Thane (Summons to be served through
Junior Engineer, M.S.E.B. Ashti(
Taluka Ashti District Beed. ...Respondents
.....
Mrs. A.N. Ansari, advocate for the applicant,
Ms. R.P. Gour, A.P.P. for respondent No.1-State,
Mr. S.V. Mundhe, advocate for respondent No. 2
.....
CORAM : V. K. JADHAV, J.
Date of Reserving
the Judgment : 26.08.2016
Date of pronouncing
the Judgment : 15.09.2016
JUDGMENT:-
1. Being aggrieved by the order passed by learned J.M.F.C.
Ashti in R.C.C. No.119 of 2004 dated 20.12.2004 thereby issuing
cran2568.05
process against the applicant accused for the offences punishable
under Sections 135 and 138 (D) of Electricity Act 2003 and confirmed
in Criminal Revision No. 129 of 2004 by the 4 th Ad-hoc Additional
Sessions Judge, Beed on 16.9.2005, the original accused has
preferred this writ petition.
2. Brief facts, giving rise to the present writ petition are as
follows:-
a) On 6.12.2004, the Junior Engineer, flying squad, M.S.E.B.
Kalyan, had visited the ice factory of the accused and inspected the
electric meter No. 576545 and found that the applicant is utilizing the
meter power of 25.0 H.P. Though he was given supply of 18.00 H.P.
It has alleged that the applicant used magnate on meter to stop the
reading of the electric meter and complainant fund that applicant
committed theft of electric supply to the extent of 44,882 units. It is in
these premises the complaint came to be filed against the applicant
for the thief of electric supply, punishable under Sections 135 ad 138
(D) of the Electricity Act 2003.
b) The learned J.M.F.C. on recording verification statement of
the complainant, by impugned order dated 20.12.2004 directed
issuance of process against the accused under Section 135 and 138
cran2568.05
(D) of Electricity Act 2003. Being aggrieved by the said order, the
accused preferred criminal revision application No. 129 of 2004
before the Sessions Court, Beed and the learned 4 th Adhoc
Additional Sessions Judge, Beed by order dated 16.9.2005
dismissed the said revision. Hence, this criminal application.
3. Learned counsel for the applicant submits that in view of
amendment to Sections 153 and 154 of Electricity Act 2003, the
Magistrate is not empowered to take cognizance of offences
punishable under Sections 135 and 138 of Electricity Act 2003 and
try those offences. The Special Courts are constituted for the trial of
the offences referred to in Sections 135 to 140 and Section 150 and
in view of the provisions of Section 153 of the Act 2003, the Special
Court shall consist of single Judge, who shall be appointed by the State
Government with concurrence of the High Court and a person shall not
be qualified for appointment as a Judge of a Special Court unless he
was, immediately before such appointment, an Additional District and
Sessions Judge. In its application to the State of Maharashtra, in
Section 153, after sub section (4), the State Amendment (Maharashtra)
added sub-section (5) thereby making it clear that, where no Special
Court for any area or areas has been constituted under sub-section (1),
one or more Additional District and Sessions Judges, as may be
designated by the High Court, for such area or areas, from time to time,
shall exercise the powers of the Special Court under this Act and any
cran2568.05
Judge so designated shall be deemed to be a Special Court for the
purpose of this Act.
In view of provision of Section 151 of the Act of 2003, the
Special Courts constituted under Section 153 shall be competent to take
cognizance of the offence without the accused being committed to it for
trial. In view of sub-section (1) of Section 154, every offence punishable
under Sections 135 to 140 and Section 150 shall be triable only by the
Special Court, within whose jurisdiction such offence has been
committed. Despite such observations have been made by this court in
the order dated 2.12.2005 while issuing Rule in connected matter i.e.
Criminal Writ petition No. 227 of 2005, and even though learned
A.P.P. was directed to obtain the instructions, either from the State or
from the Registrar, General, High Court, Appellate Side, Bombay,
whether any Special Courts are established and if not, whether any
notifications have been issued under section 153(5) by the High
Court, one letter dated 22.3.2004 issued by the Registrar (Legal),
High Court, Bombay which is addressed to the Chairman,
Maharashtra State Electricity Board on the subject of issuance of
administrative direction for acceptance of cases involved offences
under the Electricity Act 2003 and directions regarding grant of
remand etc. produced before the court, wherein it is stated that the
Electricity Board may file written complaint before the Magistrate
through the person mentioned in Section 151 of the Electricity Act
cran2568.05
and the Magistrate shall thereafter follow the procedure, as laid down
in Sections 200 and 202 of Cr.P.C. Learned counsel submits that
entire approach of the Magistrate of accepting the complaint and
issuing process thereon is per-se illegal and thus liable to be
quashed and aside.
Learned counsel submits that as per the provisions of Section
201 of Cr.P.C. if the complaint is made to the Magistrate, who is not
competent to take cognizance of the offence, he shall, if the
complaint is in writing, return it for presentation to the proper court
with an endorsement to that effect and if the complaint is not in
writing, direct the complainant to the proper court. Even the learned
Magistrate has not followed the procedure as contemplated under
Section 201 of Cr.P.C.
4. Learned counsel for respondent No.2 submits that as per the
provisions of Section 151 of the Act of 2003, the cognizance of an
offence punishable under this Act is barred by the court 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. It is
not disputed that the Junior Engineer of M.S.E.B. is an officer
cran2568.05
authorized to file the complaint in writing before the court, as
provided under the provisions of Section 151 of the Act 2003. By
way of proviso to Section 151, it is made clear that Special courts
constituted under Section 153 shall be competent to take cognizance
of an offence without the accused being committed to it for trial.
Learned counsel submits that in view of sub-Section (2) of Section
154 of the Act 2003, if in the course of any enquiry or trial that an
offence punishable under Sections 135 to 140 and Section 150 in
respect of any offence that the case is one which is triable by a
Special Courts constituted under this Act for the area in which such
case has arisen, it shall transfer such case to such Special Court and
thereupon, such case shall be tried and disposed of by such Special
Court in accordance with the provisions of this Act.
In view of provisions of Section 190 of Cr.P.C. the Magistrate
may take cognizance of any offences; (a) upon receiving a complaint
of facts which constitute such offence; (b) upon a police report of
such facts; (c) upon information received from any person other than
a police officer, or upon his own knowledge, that such offence has
been committed. In absence of any notification/ designation of one
or more Additional District and Sessions Judge, as a Judge of the
Special Court as per sub section (5) of Section 153 of the Act 2003
(State Amendment to Maharashtra), the Magistrate is not debarred
cran2568.05
from taking cognizance of offence upon receiving a complaint on
facts, which constitute such offence. Learned counsel submits that in
view of sub-section (2) of Section 154, as referred above, the
Magistrate can transfer such cases to such Special Court and
thereupon such case shall be tried and disposed of by such Special
Court in accordance with the provisions of Act 2003. Learned
counsel submits that in view of provisions of Section 460 of Cr.P.C.
particularly clause (e), if the Magistrate is not empowered by law to
take cognizance of offence under clause (a) or clause (b) of sub
section (1) of Section 190 and done so, this irregularity does not
vitiate the proceedings. Learned counsel submits that in any manner,
this ground alone is not sufficient to quash and set aside the order of
issuance of process passed by the Magistrate in this case.
5. I have also heard learned A.P.P. for the respondent-State.
6. Section 151 of Electricity Act deals with the cognizance of
offence made punishable under the Act. Section 153 provides the
constitution of special court and further Section 154 prescribes the
procedure and power of the Special Court. Sections 151, 153
alongwith sub section (5) i.e. State amendment to Maharashtra and
Section 154 sub section (1) and (2) are relevant for discussion in the
present matter, which are reproduced below:-
cran2568.05
"151. 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.
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.
State Amendment- (Maharashtra) In its application to the
State of Maharashtra, for S. 151 substitute the following
section, namely;-
"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 Commissioner or any of their
officer authorized by them or a Chief Electrical Inspector or an
Electrical Inspector or a licensee or the generating company,
as the case may be, for this purpose; or
(b) upon a 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 authorized to file a
cran2568.05
complaint under clause (a)."
153. Constitution of Special Courts.- (1) The State Government
may, for the purposes of providing speedy trial of offences referred
to in sections 135 to 140 and section 150, by notification in the
Official Gazette, constitute as many Special Courts as may be
necessary for such area or areas, as may be specified in the
notification.
(2) A Special Court shall consist of a single Judge who shall be
appointed by the State Government with the concurrence of the
High Court.
(3) A person shall not be qualified for appointment as a judge of a
Special Court unless he was, immediately before such
appointment, an Additional District and Sessions Judge.
(4) Where the office of the Judge of a Special Court is vacant, or
such Judge is absent from the ordinary place of sitting of such
Special Court, or he is incapacitated by illness or otherwise for the
performance of his duties, any urgent business in the Special
Court shall be disposed of--
(a) by a Judge, if any, exercising jurisdiction in the Special
Court;
(b) where there is no such other Judge available, in
accordance with the direction of District and Sessions Judge
having jurisdiction over the ordinary place of sitting of Special
Court, as notified under sub-section (1).
State Amendment- (Maharashtra) In its application to the
State of Maharashtra, in S. 153 after sub-S.(4), add the
following sub-section, namely:-
"(5) Where No Special Court for any area or areas has been
constituted under sub-section (1), one or more Additional
cran2568.05
District and Sessions Judges, as may be designated by the
High Court, for such area or areas, from time to time, shall
exercise the powers of the Special Court under this Act and
any Judge so designated shall be deemed to be a Special
Court for the purposes of this Act."
154. Procedure and power of Special Court.- (1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, every offence punishable under sections 135 to
140 and section 150 shall be triable only by the Special Court
within whose jurisdiction such offence has been committed.
(2) Where it appears to any court in the course of any inquiry or
trial that an offence punishable under sections 135 to 140 and
section 150 in respect of any offence that the case is one which is
triable by a Special Court constituted under this Act for the area in
which such case has arisen, it shall transfer such case to such
Special Court, and thereupon such case shall be tried and
disposed of by such Special Court in accordance with the
provisions of this Act:
Provided that it shall be lawful for such Special Court to act on
the evidence, if any, recorded by any court in the case of presence
of the accused before the transfer of the case to any Special
Court:
Provided further that if such Special Court is of opinion that
further examination, cross-examination and re-examination of any
of the witnesses whose evidence has already been recorded, is
required in the interest of justice, it may resummon any such
witness and after such further examination, cross-examination or
reexamination, if any, as it may permit, the witness shall be
discharged."
(3) .....
cran2568.05
(4) .....
(5) .....
(6) ....."
7. Learned counsel for the petitioner, in view of the provisions of
Section 151 which is about cognizance of offence by the Special
Court without accused being committed it for trial and further as per
the provision of Section 153 wherein the designation of one or more
Additional District and Sessions Judges as a special Court for any
area or areas by the High Court, submits that the order of issuance of
process by the Magistrate by taking cognizance of the complaint of
the offence made punishable under the Electricity Act itself is illegal
and thus liable to be quashed and set aside.
8. Section 190 of Cr.P.C. provides that the Magistrate may take
cognizance of offence, upon receiving a complaint or upon police
report or on information received from the person other than a police
officer, or upon his own knowledge. Thus, cognizance is taken at the
initial stage when the Magistrate peruse the complaint with a view to
ascertain whether the commission of any offence is disclosed.
cran2568.05
9. As per the provisions of Section 153 of Electricity Act, the
Additional District and Sessions Judge shall be competent to be
appointed as a Judge of Special court and if no special court has
been constituted under sub-section (1) of Section 153, then in view of
State Amendment (Maharashtra) of sub-section (5) of Section 153,
the High Court may designate one or more Additional District and
Sessions Judges to exercise the powers of Special court under the
Act and any Judge, so designated, shall be deemed to be special
court for the purpose of the Act of 2003. Further, in view of the
provisions of Section 151, more specifically proviso 2, the special
court, as constituted under the provisions of Section 153, shall be
competent to take cognizance of offence without accused being
committed to it for trial. In ordinary course, the special court, being
the court of Sessions, would not take cognizance of the offence
without accused being committed it for trial. The same would be
defeating the object of speedy enquiry or trial of offence explicit
under the provisions of Section 153 of the Electricity Act. Thus, there
is enabling provision under Section 151 proviso as above,
empowering that the special court to take cognizance of offence
without the accused being committed to it for trial. It is also
necessary to note that the power of the Magistrate to take
cognizance under Section 190 of Cr.P.C. is not excluded. The same
is also evident from the provisions of sub-section (2) of Section 154
cran2568.05
of the Act 2003 that in the course of any enquiry or trial, if it appears
to any Court that an offence punishable under Sections 135 to 140
and Section 150 of the Act 2003 in respect of any offence that the
case is one which is triable by the special court constituted under the
Act of 2003 for the area in which such case has arisen, it shall
transfer such case to such special court, and thereupon such case
shall be tried and disposed of by such Special Court in accordance
with the provisions of this Act.
10. Learned counsel for the petitioner submits that in view of
section 201 of Cr.P.C. if the complaint is made to a Magistrate, who
is not competent to take cognizance of the offence, he shall if the
complaint is in writing, return it for presentation in the proper court
with an endorsement to that effect. It is well settled that expression
"take cognizance" would mean that take the notice of offence and
would include (a) take the notice of offence in judicial capacity with a
view to initiate judicial proceedings against offender in respect of that
offence or (b) take the notice of offence by Magistrate in an executive
capacity or (c) take the notice of offence for other purposes. As per
the provisions of Act of 2003 the powers of the Magistrate to take
cognizance under Section 190 of Cr.P.C. is not excluded and it is
provided that the special Court constituted under the provisions of
Section 153 shall be competent to take cognizance of offence without
cran2568.05
the accused being committed to it for trial. Proviso to Section 151 of
the Act of 2003 was inserted w.e.f. 15.6.2007 and the State
Amendment (Maharashtra) to Section 151 of the Act 2003 w.e.f.
23.6.2005 simply provides that the court shall not take cognizance of
offence except upon a complaint in writing made by a person as
detailed in clause (a) of Section 151 (State Amendment -
Maharashtra).
11.
At present all Sessions Judges, Additional Sessions Judges
and Adhoc Additional Sessions Judges, appointed to preside over
the special Courts constituted under sub-section (1) of Section 153 of
the Act to exercise jurisdiction and power under the said Act by
notification dated 27.8.2014 issued in concurrence with the Hon'ble
the Chief Justice of this Court. In view of the provision of Section
154 of sub-section (2) of the Act 2003 the Magistrate is bound to
transfer the said cases to such special Court and thereupon such
case shall be tried and disposed of by special court in accordance
with the provisions of the Act of 2003.
12. As per the provisions of Section 460 of Cr.P.C. particularly
clause (e), if any Magistrate is not empowered by law to take
cognizance of offence under clause (a) or clause (b) of sub-section
(1) of Section 190 of Cr.P.C. such irregularity do not vitiate the
cran2568.05
proceedings.
13. In view of above discussion, I do not find any substance in the
criminal application. The criminal application is thus liable to be
dismissed. Hence, the following order:-
ORDER
I. Criminal application is accordingly dismissed with following
directions:-
"The learned Judicial Magistrate, First Class, Ashti, District
Beed in compliance with the provisions of sub-Section (2)
of Section 154 of the Electricity Act 2003, shall transfer
R.C.C. No.119 of 2004 to such special Court (Sessions
Court at Beed) constituted under the Act of 2003 and
thereupon the said case shall be tried and disposed of the
such special Court in accordance with the provisions of
Electricity Act 2003."
II. The criminal application is disposed of. Rule discharged.
( V. K. JADHAV, J.)
rlj/
