Delhi High Court

Abhay Tyagi vs State Nct Of Delhi & Anr. on 24 March, 2009

Author: Ajit Prakash Shah

21.
*        IN THE HIGH COURT OF DELHI AT NEW DELHI


+        CRL.M.C. 4371/2005

                                       Date of decision: 24th March, 2009


         ABHAY TYAGI                                 ..... Petitioner
                            Through Mr. Fanish K. Jain, Advocate.

                       versus

         STATE NCT OF DELHI & ANR.             ..... Respondents

Through Mr. Sandeep Sethi, Sr. Advocate with Mr. Anupam Verma, Mr. Mayank Mishra & Mr. Divyam Agarwal, Advocates.

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be allowed to see the

judgment? Yes

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported in the Digest ? Yes

AJIT PRAKASH SHAH, CHIEF JUSTICE (ORAL)

M.C. Garg, J. has referred this petition for consideration by a larger

Bench on the following points:

i) Whether the Electricity Rules, 2005 are applicable in a case where the raid was conducted prior to the coming into force of the said Rules.

ii) Whether the DERC Regulations were still applicable against the petitioner in the given facts of this case. More so, when they are inconsistent with the provisions of the New Act, i.e., Electricity Act, 2003 and further the provisions contained in the New Act lays down procedure different than the old procedure which even call for issuing of a show cause notice before determining as to whether the petitioner was guilty of committing theft.

iii) In the circumstances is it possible for a Special Judge to take cognizance of the offence based upon a police report in such a matter despite the power contained under Section 151 of the Cr.P.C.

2. The petition has been filed under Section 482 of the Cr.P.C., for

quashing the FIR No.235/2004 registered at P.S. Seema Puri, at the

instance of the 2nd respondent-BSES Yamuna Power Limited on the

allegation that on an inspection conducted at the premises of the

petitioner it was found that the petitioner had indulged in the theft of

electricity and, therefore, he was liable to be punished under Section 39 of

the Indian Electricity Act, 1910 (now, Section 135 of the Electricity Act

2003) read with Section 379 of the Indian Penal Code. The inspection was

carried on 21st April, 2004 and the complaint was lodged with the police on

13th June, 2004, which has resulted in registration of an FIR. The

estimated loss of energy due to the theft of electricity detected during the

inspection has been assessed at Rs.1,46,39,030/-. The submission of the

petitioner is that after the enactment of the Electricity Act, 2003

(„Electricity Act‟ for short) which repealed the Indian Electricity Act, 1910

as well as Delhi Electricity Reforms Act, 2000, no power was left with the

2nd respondent to file a complaint before the police or to get a FIR

registered with respect to the allegations made by the 2nd respondent in

the complaint, as no cognizance could have been taken of the alleged

offences specified under Section 135 to 138, which are pari materia to

Section 39 of the Indian Electricity Act, 1910, except upon a complaint

filed by an authorized officer before the Special Court in view of Section

151 of the Electricity Act. Opposing the petition the 2 nd respondent relied

upon a judgment of A.K.Sikri J in Bimla Gupta Vs. NDPL, reported in

136 (2007) DLT 521, wherein it has been held that there is no provision in

the Electricity Act, 2003 to suggest that cases of theft of electricity cannot

originate from an FIR. The learned single Judge, however, observed that

in Bimla Gupta's case(supra), the Court has relied upon the judgment of

this Court in Sohan Lal Vs. North Delhi Power Limited & Ors.,

reported in 113 (2004) DLT 547 rendered by Sanjay Kishan Kaul, J., which

view has been differed by another single Judge S. Ravindra Bhat, J. in Raj

Kumar Vs. BSES Yamuna Power Limited, W.P. (C) No. 18912/2006

decided on 18th December, 2006. Further in Bimla Gupta's case(supra),

reference was made to the Electricity Rules, 2005 which had not come into

force when the FIR in the present case was registered and, therefore, the

learned single Judge opined that the correctness of the judgment delivered

in Bimla Gupta's case is required to be examined by a larger Bench.

3. Learned counsel appearing for the petitioner submitted that the

Electricity Act, 2003 is a complete code and proceedings are to be filed

only under this Act alone. Section 151 of the Electricity Act completely

bars initiation of the proceedings in any other manner, except in the

manner that has been provided under the said Act. This provision

provides that no court shall take cognizance of an offence punishable

under this Act except upon a complaint, whereas in the instant case

instead of filing a complaint, FIR was lodged invoking the provisions of

Cr.P.C., which is not permissible. Learned counsel further submitted that

Section 154 of the Electricity Act also prescribes the manner and mode in

which the action will be taken upon the complaint and it starts with non-

obstante clause meaning thereby the procedure as applicable in other

criminal cases under the Cr. P.C. is barred. He argued that under Section

151 of the Electricity Act, power of police to investigate a case has been

taken away and, therefore, no FIR could be lodged, more so when the

legislature in its wisdom has laid down specific procedure in the said Act

and only that procedure has to be followed and no other mode is

prescribed in the law. The counsel also submitted that the DERC

(Performance standards, Metering & Billing) Regulations, 2002 (DERC

Regulations, for short) which enabled lodging of a report with the local

police stood repealed in view of Section 185(3) of the Electricity Act of

2003. He submitted that S. Ravindra Bhat, J. in his referring order in Raj

Kumar's case (supra) has raised doubt about the correctness of the

decision in Sohan Lal's case(supra) wherein it has been held that the

DERC Regulations have been saved by Section 185 of the Electricity Act.

Lastly, the learned counsel contended that in Bimla Gupta's case(supra)

the Court was concerned with the Electricity Rules, 2005 which were not in

force at the relevant time when the FIR was registered in the present

case.

4. In reply, Mr. Sandeep Sethi, learned senior counsel appearing for

the 2nd respondent submitted that during a surprise check conducted by

the Enforcement Team it was revealed that the petitioner was indulging in

direct theft of electricity. Such an offence of theft is punishable with three

years of imprisonment besides fine and thus, was a cognizable offence.

Since a cognizable offence was committed, it was permissible for the 2 nd

respondent to lodge a FIR and the police authorities are bound to

investigate the same in accordance with law so as to ascertain the persons

who are responsible for the said theft and to take appropriate proceedings

under the law. He submitted that nothing has been specified under the

Electricity Act, which makes the said offence non-cognizable. Since the

statute was silent on this aspect as to whether theft of electricity is a

cognizable offence or not, the Cr.P.C. needs to be relied upon for the said

purpose. He also pointed out that in respect of every offence which is

cognizable, it is the duty and responsibility of the police authorities to

the Electricity Act does not create a bar on registration of the FIR and

investigation of the case by the police authorities. The bar, if any, is on

the court to take cognizance of a case without there being a complaint by

the competent person, which stage has not reached as of today. He

submitted that the matter was at the investigation stage, when the

petitioner approached this Court. Learned counsel submitted that the

question of applicability of 2005 Rules does not arise in this case. He

maintained that the Sohan Lal's case(supra) has been correctly decided

but in this case since the only limited issue is about the registration of the

FIR in accordance with the provisions of the Cr.P.C., this Court need not

decide the issue of applicability of the regulations to the facts of the

present case.

5. In order to appreciate the respective contentions, it is essential to

first take note of the relevant provisions of the Electricity Act, which are

Sections 135, 138, 151, 154, 155 and 175 and they read as follows:-

"135. Theft of Electricity.- (1)Whoever, dishonestly, --

a. taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee; or b. tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or

c. damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:

Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use -

i. does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity; ii. exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity: Provided further that if it is proved that any artificial means or means not authorized by the Board or licensee exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.

2. Any officer authorized in this behalf by the State Government may -

a. enter, inspect, break open and search any place or premises in which he has reason to believe that electricity [has been, is being], used unauthorisedly;

b. search, seize and remove all such devices, instruments, wires and any other facilitator or article which [has been, is being], used for unauthorized use of electricity;

c. examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.

3. The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:

Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.

4. The provisions of the Code of Criminal Procedure, 1973,( 2 of 1974) relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.

138. Interference with meters or works of licensee.-(1) Whoever, -

a. unauthorisedly connects any meter, indicator or apparatus with any electric line through which electricity is supplied by a licensee or disconnects the same from any such electric line; or b. unauthorisedly reconnects any meter, indicator or apparatus with any electric line or other works being the property of a licensee when the said electric line or other works has or have been cut or disconnected; or

c. lays or causes to be laid, or connects up any works for the purpose of communicating with any other works belonging to a licensee; or d. maliciously injures any meter, indicator, or apparatus belonging to a licensee or willfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering; shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both, and , in the case of a continuing offence, with a daily fine which may extend to five hundred rupees; and if it is proved that any means exist for making such connection as is referred to in clause (a) or such re-connection as is referred to in clause (b), or such communication as is referred to in clause

(c), for causing such alteration or prevention as is referred to in clause (d), and that the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not, it shall be presumed, until the contrary is proved, that such connection, reconnection, communication, alteration, prevention or improper use, as the case may be, has been knowingly and willfully caused by such consumer.

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.

154. Procedure and power of Special Court.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under sections 135 to 139 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 139 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 re- examination, if any, as it may permit, the witness shall be discharged.

(3)The Special Court may, notwithstanding anything contained in subsection (1) of section 260 or section 262 of the Code of Criminal Procedure, 1973 (2 of 1974), try the offence referred to in sections 135 to 139 in a summary way in accordance with the procedure prescribed in the said Code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial:

Provided that where in the course of a summary trial under this subsection, it appears to the Special Court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the said Code for the trial of such offence:

Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years.

(4)A Special Court may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to, any offence tender pardon to such person on condition of his making a full and true disclosure of the circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof, and any pardon so tendered shall , for the purposes of section 308 of the Code of Criminal Procedure,1973 (2 of 1974), be deemed to have been tendered under section 307 thereof.

(5)The Special Court may determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil court.

(6)In case the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, to the Board or licensee or the concerned person, as the case may be, shall be refunded by the Board or licensee or the concerned person, as the case may be, within a fortnight from the date of communication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment.

Explanation.- For the purposes of this section, " civil liability" means loss or damage incurred by the Board or licensee or the concerned person, as the case may be, due to the commission of an offence referred to in sections 135 to 139.

155. Special Court to have powers of Court of Session.-Save as otherwise provided in this Act, the Code of Criminal Procedure, 1973 (2 of 1974), 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 the provisions of the said enactments, the Special Court shall be deemed to be a Court of Session and shall have all powers of a Court of Session and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor."

175. Provisions of this Act to be in addition to and not in derogation of other laws.- The provisions of this Act are in addition to and not in derogation of any other law for the time being in force."

6. Section 135 of the Electricity Act provides that whoever dishonestly

abstracts, consumes or uses electricity in a manner mentioned in Clauses

(a) to (c) to Section 135 shall be punishable with imprisonment of either

description for a term which may extend to three years or with fine or with

both. Section 138 makes the interference with meters or works of licensee

in the manner mentioned therein punishable with imprisonment for a term

which may extend to three years, or with fine which may extend to ten

thousand rupees, or with both, and, in the case of a continuing offence,

with a daily fine which may extend to five hundred rupees. Section 151 of

the Act states that 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.

Section 154 of the Act opens with a non-obstante clause and provides that

every offence punishable under Sections 135 to 139 shall be triable only by

the Special Court within whose jurisdiction such offence has been

committed. Section 154(3) provides that notwithstanding anything

contained in sub-section (1) of Section 260 or Section 262 of the Cr.P.C.

the Special Court may try the offences referred to in Sections 135 to 139 in

a summary way in accordance with the procedure prescribed in the Code

and the provisions of Sections 263 to 265 of the Code shall, so far as may

be, apply to such trial. Section 155 of the Act provides that save as

otherwise provided in this Act, the provisions of the Cr.P.C., insofar as they

are not inconsistent with the provisions of the Act shall apply to the Special

Court and for the purpose of the said enactments the Special Court shall

be deemed to be a Court of Session and shall have all powers of a Court of

Session and the person conducting a prosecution before the Special Court

shall be deemed to be a Public Prosecutor. Section 175 states that the

provisions of this Act are in addition to and not in derogation of any other

law for the time being in force.

7. Coming then to the provision of the Cr.P.C., it is seen that the code

demarcates the offences into two categories, viz. cognizable and non-

cognizable offences. As per Part II of Schedule I of the Code, any offence

punishable with three years or more of imprisonment is a cognizable

offence. Accordingly, Section 154 of the Cr.P.C. prescribes that in respect

of every offence which is a cognizable one, information thereof is to be

given to an officer in-charge of a police station, who shall reduce the same

into writing. Thus, it is the duty and responsibility of the police authorities

to register a FIR. Sub-section (3) of Section 154 further obligates the

police authorities to investigate the same as per the manner prescribed in

subsequent sections and thereafter submit its report to the Magistrate,

who is empowered to take cognizance of the offence on police report

under Section 173 of the Code, on completion of investigation. In that

regard, the provisions of Section 4 which are material are reproduced

below:-

"4. Trial of offence under the Indian Penal Code and other laws.-(1) All offences under the Indian Penal Code (45 of 1860)shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner of place of investigating, inquiring into, trying or otherwise dealing with such offences."

8. It is seen from the bare reading of Section 4 that the provisions of

the Cr.P.C. would be applicable where an offence under the IPC or under

any other law is being investigated, inquired into, tried or otherwise dealt

with. The provisions of the Cr.P.C. would apply to offences under any

other law, such as the Electricity Act and can also be investigated, inquired

into or tried with in accordance with the provisions of the Cr.P.C., except in

a case of an offence where the procedure prescribed thereunder is

different than the procedure prescribed under Cr.P.C. The Electricity Act

does not contain any provision which stipulates a separate procedure for

the offences under the said Act. In fact, Section 155 of the Act

specifically provides that the provisions of the Cr.P.C. shall apply to the

proceedings before the Special Court insofar as they are not inconsistent

with the provisions of the Act. Section 154(3) indicates that the trial

before the Special Court has to be conducted in a summary way in

accordance with the procedure prescribed and the provisions of Sections

263 to 265 of the Code shall so far as may be applied to such trial.

Section 175 makes it clear that the provisions of the Act are in addition

and not in derogation of any other law for the time being in force.

9. Section 151 of the Electricity Act as it stood at the relevant time

provided the manner of taking cognizance of an offence and the

cognizance has to be taken on the basis of a complaint filed by the

officers/authorities mentioned therein. It does not mean that the police

cannot investigate a cognizable offence under the Cr.P.C. Section 151 of

the Act comes into operation at the stage when the court intends to take

cognizance of offences under Sections 135 to 139 of the Act, and it has

nothing to do with the statutory power of the police to investigate into a

FIR, which discloses a cognizable offence, in accordance with Chapter XII

of the Cr.P.C. In other words, the statutory power of the police to

investigate under the Code is not in any way controlled or circumscribed

by Section 151 of the Act. An offence of theft of electricity is punishable

with three years of imprisonment besides fine and is a cognizable offence.

As a cognizable offence had been committed, it was permissible for the

respondent to lodge a FIR and for the police authorities to investigate the

same in accordance with law. Section 151 of the Electricity Act enables

certain authorities / officers to become complainants before the court in

such cases and file complaint before the court in writing. However, that

does not mean that other avenues for investigation which are available are

excluded, since no such special procedure for trying the offences under

the Electricity Act is provided and cases under Electricity Act are also

governed by the Cr.P.C. Therefore, the submission of the learned counsel

appearing for the petitioner that the police cannot investigate into the FIR

filed by the officer authorized by the electricity company has to be

rejected.

10. In M. Narayandas Vs. State of Karnataka and Others,

reported in (2003) 11 SCC 251, the contention of the accused-respondent

was that since the case fell under Section 195 Cr.P.C., it was the

provisions of Chapter XXVI Cr.P.C. which would apply and not that of

Chapter XII Cr.P.C. Therefore, it was submitted that in such a case the

only procedure which could be followed was to make an application to the

Court, but by not following the procedure laid down under Chapter XXVI of

the CrPC. It was urged that if an application had been made to the court

and the court had taken a decision, then under Section 341 Cr.P.C. an

appeal could have been filed. By making a complaint to the police, who

would then make a report to a court and the court would take cognizance,

the respondent was deprived of the right of appeal as provided under

Section 341. Rejecting the contention, the Court held as follows:-

"8. We are unable to accept the submissions made on behalf of the Respondents. Firstly, it is to be seen that the High Court does not quash the complaint on the ground that Section 195 applied and that the procedure under Chapter XXVI had not been followed. Thus such a ground could not be used to sustain the impugned judgment. Even otherwise, there is no substance in the submission. The question whether Sections 195 and 340 of the Criminal Procedure Code affect the power of the police to investigate into a cognizable offence has already been considered by this Court in the case of State of Punjab v. Raj Singh. In this case it has been that as follows:

"2. We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondents alleging commission of offences under Sections 419, 420, 467, and 468 IPC by them in course of the proceeding of a civil suit, on the ground that Section 195(1)(b)(ii) CrPC prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 CrPC it is manifest that it comes into operation at the stage when the court intends to take cognizance of an offence under Section 190(1) CrPC; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed to, or in relation to, any proceedings in court. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195 CrPC. It is or course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) CrPC, but nothing therein deters the court from filling a

complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 CrPC. The judgment of this Court in Gopalakrishna Menon v. Raja Reddy on which the High Court relied, has no manner of application to the facts of the instant case for there cognizance was taken on a private complaint even though the offence of forgery was committed in respect of a money receipt produced in the civil court and hence it was held that the court could not take cognizance on such a complaint in view of Section 195 CrPC."

Not only are we bound by this judgment but we are also in complete agreement with the same. Sections 195 and 340 do not control or circumscribe the power of the police to investigate under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided the procedure laid down in Section 340 Criminal Procedure Code is followed. Thus no right of the Respondents, much less the right to file an appeal under Section 341, is affected."

11. In Deepa Singh Vs. State, reported in 1998 IV AD (DELHI) 492, a

complaint was made to the police against the petitioner therein under

Section 466-A of the Delhi Municipal Corporation Act, 1957 alleging that

the petitioner had made certain deviations in the construction of the

building in violation of the sanctioned building plan. The police on

receiving the complaint initiated investigation into the matter and recorded

the statement of the Junior Engineer and others. On completion of the

investigation, a police report was filed in the court of Metropolitan

Magistrate under Section 173 of the Code of Criminal Procedure. The

learned Metropolitan Magistrate took cognizance of the offence under

Section 332 read with Section 461 of the Act and proceeded to frame

charges against the petitioner. At that stage, the petitioner took an

objection that the learned Metropolitan Magistrate did not have the

jurisdiction to proceed with the trial of the offence as no complaint had

been filed before the Court by any officer of the Corporation authorized by

the Commissioner in that behalf. It was argued that under Section 467 of

the Act no court can proceed to the trial of any offence under Section 332

of the Act except on a complaint of the Commissioner or any person

authorized by him by a general or special order in this behalf and since no

complaint has been filed by the Commissioner or any person authorized by

him, the Metropolitan Magistrate ought not to have proceeded with the

trial of the case on a police report. Rejecting this argument, Anil Dev

Singh, J held that:

"5. It is apparent from the reading of this Section that the provisions of the Code of Criminal Procedure are applicable where an offence under the Indian Penal Code or under any other law is being investigated, inquired into, tried or otherwise dealt with. This position is clear from sub-section (2) of Section 4 of the Code of Criminal Procedure which provides that all

offences, whether under the Indian Penal Code or under any other law, are required to be investigated, inquired into or tried according to the provisions of the Code of Criminal Procedure except in case of an offence where the procedure prescribed thereunder is different than the procedure prescribed under the Code of Criminal Procedure. At this stage it needs to be noted that Section 466-A of the Delhi Municipal Corporation Act specifically lays down that the Code of Criminal Procedure shall apply to an offence under sub-Section (5) of Section 313 or Section 332 or sub-section (1) of Section 334 or Section 343 or Section 344 or Section 345 or Section 347 and an offence under sub-section (1) of Section 317 or sub-section (1) of Section 320 or sub- section (1) or Section 321 or sub-section (1) of Section 325 or Section 339 in relation to any street which is a public street; as if it were a cognizable offence for the purpose of investigation of such offence; and for the purpose of all matters other than matters referred to in Section 42 of the Code, and arrest of a person, except on the complaint of, or upon information received from such officer of the Corporation not being below the rank of Deputy Commissioner, as may be appointed by the Commissioner. Therefore, the procedure to be followed for the purpose of investigation of the offences under Section 332 of the Delhi Municipal Corporation Act is the one which is laid down in the Code of Criminal Procedure, 1973. Much stress was laid by the learned counsel for the petitioner on the provisions of Section 467 of the Delhi Municipal Corporation Act which lays down that save as otherwise provided in the instant Act, no court shall proceed to the trial of any offence under certain sections of the Act including Section 332 unless a complaint on or upon receiving information from the Commissioner or a person authorised by him is filed. ....

6. Learned counsel for the petitioner submitted that since the complaint was not filed by the

Commissioner or any person authorised by him, therefore, the Court could not proceed to the trial of the offence under Section 332 of the Act. In making the submission, learned counsel for the petitioner has not given due consideration to the fact that the prosecution could be initiated upon information received by the Court from an officer of the Corporation. Such an information can be received by the court from the Officer of the Corporation either directly or through the agency of the police. Where the police starts investigation into the matter on the information furnished by the authorised officer of the Corporation, who is competent to file a complaint, and the police on the basis of the said information investigates the matter and finally files a report under Section 173 of the Code of Criminal Procedure, it cannot be said that the Court to which such a report is filed is not acting on the information received from the authorised officer of the Corporation. Section 467 does not lay down as to how the information should be received by the Court from the Commissioner or the person authorised by him in this behalf. It nowhere says that the information should be directly filed in the Court by the Commissioner or the person authorised by him in this behalf. Therefore, the information could also be received by the Metropolitan Magistrate through the report filed by the police under Section 173 of the Code which in turn is based on the complaint of the Commissioner or the person authorised by him. Therefore, the submission of learned counsel for the petitioner that the Court could not proceed to the trial of the offence as the complaint was not filed by the Commissioner or the person authorised by him in this behalf, is of no avail to him. Accordingly, the submission of the learned counsel for the petitioner is rejected...."

12. In the case of Bimla Gupta (supra), A.K. Sikri, J. had considered

the judgment of the Supreme Court in M. Narayandas (supra) and

judgment of this Court in Deepa Singh (supra) and held as follows:-

"14. Thus, the clear principle which emerges from the aforesaid discussion is that even when a Magistrate is to take cognizance when a complaint is filed before it, that would not mean that the police cannot take cognizance thereof.

15. It is stated at the cost of repetition that the offences under the Electricity Act are also to be tried by applying the procedure contained in Cr.P.C. Thus, it cannot be said that a complete machinery is provided under the Electricity Act as to how such offences are to be dealt with. In view thereof, I am of the opinion that learned counsel for the NDPL, is right in his submission that if the offence under the Cr. P.C. is cognizable, provisions of Chapter XII containing Section 154 Cr.P.C. and onward would become applicable and it would be the duty of the police to register the FIR and investigate into the same. Maxim generalibus specialia derogant shall have no application when the provisions are read in the aforesaid manner. Sections 135 and 138 only prescribe that certain acts relating to theft of electricity etc. would also be offences. It also enables certain persons/parties, as mentioned in Section 151, to become complainant in such cases and file complaint before a Court in writing. When such a complaint is filed, the Court would be competent to take cognizance straightway. However, that would not mean that other avenues for investigation into the offence which are available would be excluded. It is more so when no such special procedure for trying the offences under the Electricity Act is formulated and the cases under this Act are also to be governed by the Code of Criminal Procedure."

13. The SLP preferred against the decision in Bimla Gupta was

dismissed in limine. In Bimla Gupta A.K. Sikri, J also referred to the

Electricity Rules of 2005 and the Regulations of 2002, validity of which has

been upheld by Sanjay Kishan Kaul, J in Sohan Lal's case(supra).

However, in view of the foregoing discussion it is not necessary for us to

express any opinion on the question of applicability of the Regulations,

2002. The Rules of 2005 are obviously inapplicable in the facts of the

present case as the FIR was registered in 2003.

14. In our opinion, Bimla Gupta's case(supra) lays down the correct

position of law and does not require any reconsideration. In that view of

the matter, we need not express any opinion on the points raised by the

learned single Judge in his referring order. The only other contention