Dr. Anil Vinayakrao Golhar vs State Of Mah. Thr. P.S.O. ...
2017 Latest Caselaw 1049 Bom

        J-cwp196.10.odt                                                                                                  1/4    


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            NAGPUR BENCH, NAGPUR


                           CRIMINAL WRIT PETITION No.196 OF 2010


        Dr. Anil Vinayakrao Golhar,
        Aged 58 years,
        Occupation : Medical Practitioner,
        Resident of Plot No.256,
        Ramdaspeth, Nagpur.                                                         :      PETITIONER

                           ...VERSUS...

        State of Maharashtra,
        through Police Station Officer,
        Sitabuldi, Nagpur.                                                          :      RESPONDENT


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri U.A. Goasavi, Advocate for the Petitioner.
        Shri N.H. Joshi,  Addl. Public Prosecutor for the Respondent.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      CORAM  :   S.B. SHUKRE, J.

th DATE : 27 MARCH, 2017.

ORAL JUDGMENT :

1. Heard learned counsel for the petitioner and learned

Additional Public Prosecutore for the respondent/State.

2. Learned counsel for the petitioner points out that the

complaint in this case has been filed on 12.12.2003 and the informant is

one Police Head Constable Bk.No.1478 and the informant is one Yanujala

S Rao, Deputy Executive Engineer of the M.S.E.B. He submits that the

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cognizance of offence punishable under the provisions of the Electricity Act

can be taken only upon a complaint made in writing by an authorized

officer and as the complaint is distinct and different from the first

information report filed under Section 154 of the Code of Criminal

Procedure, the whole action taken by the Police in this case is vitiated. In

support, he places his reliance upon the view taken by the learned Single

Judge of this Court in a series of cases. (i) in the cases of Godawari

Marathwada Irrigation Development Corporation, Aurangabad vs.

State of Maharashtra and others, reported in 2006(2) Mh.L.J. 171, (ii)

Shakambari Industries, Akola and another vs. State of Maharashtra

and another, reported in 2006(2) Mh.L.J. 170 and (iii) Judgment of

Bombay High Court in Criminal Writ Petition No.2088/2006, Vijay

Bhagwan Shetty vs. State of Maharashtra and another.

3. Learned A.P.P. has opposed this petition and submits that the

action taken by the Police in this case is correct.

4. Section 151 of the Electricity Act, in the year 2003 read as

under :

"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 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."

5. It is obvious that as per this Section, as it stood in the year

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2003, no Court could have taken cognizance of an offence punishable

under the provisions of the Indian Electricity Act except upon a complaint

in writing made by an Appropriate Government or Appropriate Committee

or any officer named specifically in this Section. Under Section 2(d) of the

Code of Criminal Procedure complaint has been defined to me an any

allegations made orally or in writing to a Magistrate with a view to his

taking action under the Code against a person who has committed an

offence and the complaint does not include a Police report. The Police

report is a report submitted by the investigating officer under Section 173

of the Code of Criminal Procedure on completion of the investigation and

this report is quite distinct from the complaint filed in terms of Section 200

read with Section 2(d) of the Code of Criminal Procedure. Therefore,

when Section 151 lays down that no Court of Judicial Magistrate shall take

cognizance of an offence punishable under the provisions of Indian

Electricity Act except upon a complaint filed by the authorized officer, it

clearly discloses the legislative intent that it should be a complaint as

defined under Section 2(d) of Criminal Procedure Code which excludes a

Police report. That is the reason why, in the case of Shakambari (supra)

the learned Single Judge took a view that in the absence of a complaint

made in writing by any authorized officer, no Court of Judicial Magistrate

would take cognizance of the offence punishable under the provisions of

the said Act and even if any charge-sheet is filed no cognizance of the

charge-sheet could be taken by the Court of Judicial Magistrate, First Class.

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Same view has been reiterated by the other learned Single Judges of this

Court in the cases of Vijay Bhagwan Shetty and Godawari Marathwada

Irrigation Development Corporation, Aurangabad (supra). It is a different

matter that considering this lacuna in Section 151 of the Electricity Act,

2003 an amendment was introduced with effect from 15.6.2007 and now

the amended Section allows a Court of Judicial Magistrate, First Class to

take cognizance of offence even upon a report filed by the Police officer

under Section 173 of Criminal Procedure Code. But, as stated earlier, in

the instant case the incident has taken place and the FIR has been filed

before the said amendment was inserted.

6. In the circumstances, I find that there is no substance in the

argument of learned A.P.P. and there is merit in the argument of learned

counsel for the petitioner. The petitioner deserves to be discharged and

the proceedings also need to be quashed.

7. The writ petition stands allowed.

8. The petitioner stands discharged from the case and the

proceedings of the Regular Criminal Case No.43/2004 are hereby quashed

and set aside.

9. Rule is made absolute in these terms.

JUDGE okMksns