Bombay High Court

Tukaram Pandurang Lalpotu vs State Of Mah & Ors on 15 September, 2016

Bench: V.K. Jadhav

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                                           -1-




                                                                               
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                      
                       CRIMINAL WRIT PETITION NO. 227 OF 2005



     Tukaram S/o Pandurang Lalpotu,




                                                     
     Age: 43 years, Occu: Business,
     R/o. Lalpotu Collections, Shivaji
     Road, Parbhani.                                            ...Petitioner

                            versus




                                        
     1.       The State of Maharashtra
                             
              Through The Secretary,
              Home Department,
              Mantralaya, Mumbai.
                            
     2.       Maharashtra State Electricity Board,
              Through Dy. Executive Engineer,
              (flying squad unit)
              Shri. Sundar S/o Shamrao Latpate,
              Age: 35 years, Occu: Service,
      


              R/o. M.S.E.B., Jintur Road,
              Parbhani, Dist. Parbhani                         ...Respondents
   



                                        .....
     Mr. A.S. Usmanpurkar, advocate for the petitioner,
     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.

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Parbhani in R.C.C. No.212 of 2004 dated 25.5.2004 thereby issuing

process against the petitioner accused for the offences punishable

under Sections 135 and 138 of Electricity Act 2003 and confirmed in

Criminal Revision No. 146 of 2005 by the 2nd Ad-hoc Additional

Sessions Judge, Parbhani on 6.4.2005, the original accused has

preferred this writ petition.

2. Brief facts, giving rise to the present writ petition are as

follows:-

a) On 16.3.2004, the Deputy Executive Engineer, flying squad of

Maharashtra State Electricity Board had visited the shop of the

accused and inspected the electric meter bearing No. 525343

(MTU/PBN-1831) of Elymer make. He had inspected the sanctioned

load and other details. It was noticed that the meter was running

slowly and connected load is more than sanctioned load. Thus, the

Deputy Executive Engineer directed the concerned Officer to replace

the meter. The spot inspection report was prepared in presence of

the accused on the same day. On the basis of said report submitted

by flying squad on 18.3.2004, a bill of Rs.1,55,000/- came to be

issued to the accused. Furthermore, a notice dated 22.3.2004 also

issued directing the accused to deposit entire amount under bill

within three days and on failure, the power supply will be

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disconnected. Furthermore, on 24.4.2004, the said meter was

opened before the witnesses and in presence of the accused, and on

inspection, the tampering of meter was noticed. The photographs

were also taken and a joint inspection report was prepared in the

office of flying squad unit. It was also observed that the accused had

illegally extracted electric energy by using other devices

unauthorizedly. Thus, on 27.4.2004 the Deputy Executive Engineer

filed a private complaint before the J.M.F.C., Parbhani against the

petitioner accused for having committed offences punishable under

Sections 135 and 138 of Electricity Act 2003.

b) The learned J.M.F.C. on recording verification statement of

the complainant, by impugned order dated 25.5.2004 directed

issuance of process against the accused under Sections 135 and

138 of Electricity Act 2003. Being aggrieved by the said order, the

accused preferred criminal revision No. 146 of 2005 before the

Sessions Court, Parbhani and the learned 2 nd Adhoc Additional

Sessions Judge, Parbhani by order dated 6.4.2005 dismissed the

said revision. Hence, this writ petition.

3. Learned counsel for the petitioner 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

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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 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.

ig 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

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

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committed. Despite such observations have been made by this court in

the order dated 2.12.2005 while issuing Rule 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 involving 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 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

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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 Deputy Executive Engineer of M.S.E.B. is an

officer 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

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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

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

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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:-

"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

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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 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

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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 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

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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)       .....





                (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

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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.

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

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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

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

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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

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

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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

proceedings.

13. In view of above discussion, I do not find any substance in the

writ petition. The writ petition is thus liable to be dismissed. Hence,

the following order:-

ORDER

I. Criminal writ petition is accordingly dismissed with

following directions:-

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"The learned Chief Judicial Magistrate, Parbhani in

compliance with the provisions of sub-Section (2) of

Section 154 of the Electricity Act 2003, shall transfer

R.C.C. No.212 of 2004 to such special Court (Sessions

Court at Parbhani) 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."