Ningappa S/O Siddappa Lalasangi vs The State Of Karnataka
2021 Latest Caselaw 2558 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

         DATED THIS THE 2ND DAY OF JULY, 2021

                         BEFORE

    THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

   CRIMINAL REVISION PETITION NO.3054/2013


BETWEEN:

Ningappa S/o Siddappa Lalasangi,
Age : 45 years, Occ : Service in CRPF,
R/o Nad KD, Tq : Indi, Dist : Bijapur
Now working at Raipur, Chathisagad.
                                                ... Petitioner

(By Sri Shivanand V.Pattanashetti, Advocate)


AND:

The State of Karnataka,
Represented by Addl. SPP.,
High Court of Karnataka,
Kalaburagi Bench.
(Through Indi P.S)
                                               ... Respondent

(By Sri Gururaj V.Hasilkar, HCGP)

      This Criminal Revision Petition is filed under
Section 397 read with Section 401 of Cr.P.C praying to set
aside the judgment and order dated 08.11.2012 passed in
Crl.A.No.64/2011 by the II Addl. Sessions Judge, Bijapur
and consequently confirm the judgment of acquittal passed
in C.C.No.214/2008 by the Senior Civil Judge and JMFC,
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Indi for the offences punishable under Section 304A, 379
of IPC and acquit the petitioner.

      This Revision Petition coming on for Final Hearing
this day, the Court made the following:

                           ORDER

The revision petitioner has filed this petition under

Section 397 read with Section 401 of Code of Criminal

Procedure (for short, 'Cr.P.C') for setting aside the

judgment dated 08.11.2012, passed in Criminal Appeal

No.64/2011, by the II Additional Sessions Judge, Vijayapur

and confirming the judgment of acquittal passed in

Criminal Case No.214/2008 dated 02.08.20211, by the

Senior Civil Judge and JMFC Court, Indi for the offences

punishable under Sections 379 and 304(A) of Indian Penal

Code (for short, 'IPC').

2. The brief facts of the case are that the present

revision petitioner was prosecuted in C.C.No.214/2008 on

the file of the Senior Civil Judge and JMFC Court, Indi for

the offences punishable under Section 379 and 304(A) of

IPC. It is alleged by the prosecution that on 12.05.2004 at

6.30 a.m. in R.S.No.165/2/1 belonging to the present

revision petitioner/accused situated in Arjunagi village,

Indi taluk, he has illegally and negligently taken electricity

connection from electrical pole situated about 1000 feet

from his borewell, having knowledge that it is endangering

to human life. Due to negligent act, thereby the said illegal

current wire fall on one Gurappa Siddappa Hitnalli, who

died due to electrical shock. Hence, the present revision

petitioner was prosecuted in respect of commission of theft

of electricity and also for the offence under Section 304(A)

of IPC. The Investigating Officer has submitted the charge

sheet against the present revision petitioner/accused for

the offences punishable under Sections 304(A) and 379 of

IPC. Thereafter, matter went for trial and eight witnesses

were examined as PWs.1 to 8 and Exs.P1 to P.6 and MO.1

has been marked before the learned Magistrate. The

learned Magistrate after hearing both sides, has acquitted

the accused/revision petitioner herein by judgment dated

02.08.2011. Against the said judgment of acquittal, the

State has filed an appeal before the II Additional Sessions

Judge, Vijayapur in Criminal Appeal No.64/2011. The

learned Sessions Judge by impugned judgment dated

08.11.2012, allowed the appeal by setting the acquittal

judgment and remitted back the matter to the learned

Senior Civil Judge and JMFC Court, Indi with a direction to

secure the accused/revision petitioner herein and submit

the records before the Special Court, Vijaypaur for trial of

the case, since, it is the special case on the ground that

the offence is covered under Section 135(1)(a) of the

Electricity Act. This order is being challenged by the

accused/revision petitioner herein under section 397 read

with Section 401 of Cr.P.C.

3. The learned counsel for the revision petitioner

has contended that the revision petitioner was prosecuted

for the offences punishable under Sections 379 and 304(A)

of IPC and there was no allegation or charge in respect of

offence under Section 135 of Electricity Act and the court

suo moto taken note and remitted the matter, on the

ground that the matter requires to be heard by the Special

Court and the learned Magistrate without jurisdiction has

disposed off the matter. He further contended that the

provisions of Electricity Act stipulates that a private

complaint is required to be filed prior to amendment of the

Act in 2003-04 and the amendment came into effect in

2007 and as there was no private complaint in this case,

the provisions of Electricity Act are not applicable. But, the

learned Sessions Judge has erred in remitting back the

matter and hence he has sought for setting aside the

impugned order and prayed for confirmation of the

acquittal order.

4. The learned High Court Government Pleader

would support the judgment of learned the Sessions

Judge.

5. It is to be noted that the allegation against the

petitioner, who was accused in C.C.No.214/2008 is alleged

that he has taken illegal electricity connection to his

borewell in his land by committing theft of electricity. The

other allegation is that the said illegal electricity

connection wire fell on one Gurappa Siddappa Hitnalli, who

was moving in the field and due to negligence on the part

of the present petitioner, it has resulted in his death. As

such, the present petitioner/accused was prosecuted for

the offences punishable under Sections 304(A) and 379 of

IPC. The learned Sessions Judge in the appeal preferred

by the State observed that the Electricity Act came into

effect from 10.06.2003 and the alleged offences are said

to have taken place on 12.05.2004 and hence, the

provisions of Electricity Act were applicable and the

learned Magistrate ought to have submitted the records to

the Special Court instead of holding the trial by himself

and remitted the matter to Magistrate.

6. In this regard, the learned counsel for the

revision petitioner has invited the attention of this Court to

Section 151 of Electricity Act, which reads 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 the 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.

1[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 (2 of 1974):

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.]"

7. It is important to note here that the proviso to

Section 151 of Electricity Act was incorporated by way of

amendment with effect from 15.06.2007. Prior to

amendment, Section 151 of the Electricity Act stipulates

that no Court shall take cognizance of the offence under

the Electricity Act except upon a complaint in writing made

by a specified/authorised officer. This was prevailing prior

to 15.06.2007. The definition of the complaint was given

in Section 2(D) of Cr.P.C., which reads as under:

"2(d) " 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."

8. Admittedly, the complaint is not defined under

the Electricity Act. Hence, we will to consider the

definition of the complaint given in Section 2(d) of Cr.P.C.

and same states that the complaint means any allegation

made orally or in writing to a Magistrate. It pre supposes

that a private complaint made to the learned Magistrate in

this regard. In this context, the learned counsel for the

petitioner has placed reliance on a decision of this Court in

Criminal Appeal No.3514/2009 dated 24.06.2013, wherein,

this Court has clarified the position holding that prior to

the amendment, for the prosecution, under the provisions

of Electricity Act under un-amended Act, a private

complaint is required to be filed and the charge sheet by

the police is without any jurisdiction. In the instant case,

the police have not filed the charge sheet under the

provision of Electricity Act and the offence is said to have

taken place in the year 2004 i.e., 12.05.2004. Hence, the

proviso to Section 151 of Electricity Act was brought in

force with effect from 15.06.2007, wherein the power is

given to submit the charge sheet even under Section 173

of Cr.P.C. by taking cognizance on the basis of the charge

sheet being submitted by the police. Admittedly, in the

present case, no private complaint is filed under the

provisions of Electricity Act and the police have not

submitted the charge sheet under the provisions of the

Electricity Act. But, they have submitted the charge sheet

for the offences punishable under Sections 304(A) and 379

of IPC. The learned Sessions Judge only considering the

fact that the Act came into force on 10.06.2003,

proceeded to remit back the matter to the learned

Magistrate with a direction to secure the accused person

and to submit records before the Special Court to try the

case, which is specially established under law having

jurisdiction. But, he has not considered the fact that the

proviso was brought into force with effect from 15.06.2007

and as per the amended Act, there was no provision for

lodging a normal complaint or submission of the charge

sheet under the provisions of the Electricity Act. Hence,

the learned Sessions Judge has erred in remitting back the

matter. Further, it is also important to note here that the

learned Sessions Judge did not go to the merits of the case

and did not appreciated the evidence already recorded

pertaining to the offences punishable under Sections

304(A) and 379 of IPC and straightway, only on the basis

of the fact that the matter is covered under the jurisdiction

of Special Court, remitted it to the Magistrate with a

direction to secure the accused person and to submit

records before the Special Court having jurisdiction. This

approach of the learned Sessions Judge is erroneous as

amendment came into effect in the year 2007 and hence,

the provisions of Electricity Act cannot be made applicable

to the fact of the present case, wherein, the offence is said

to have taken place in the year 2004 and there was no

private complaint. As such, he should have proceeded on

the available material available on record and the evidence

recorded by the Magistrate by appreciating the same, but,

he has not applied his judicious mind to this effect. Hence,

the judgment of the learned Sessions Judge is erroneous.

9. The learned counsel for the petitioner would

argue that the judgment of acquittal passed by the trial

Court may be confirmed. But, since the first appellate

Court has not dealt with the appeal on merits pertaining to

the charges under Section 304(A) and 379 of IPC, that

cannot be done in this revision and the matter is required

to be remitted back to the learned Sessions Judge/Special

Court for fresh hearing. Accordingly, I proceed to pass the

following:

ORDER

The revision petition is allowed. The order passed by

the learned II Additional Sessions Judge, Vijayapur in

Criminal Appeal No.64/2011 dated 08.11.2012 is set aside.

The matter is remitted back to the learned Sessions

Judge/Special Court for disposal of the appeal on merits

after securing the records of the trial Court.

Registry is directed to sent back the records to the

concerned Court.

Sd/-

JUDGE

sn/Srt