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IN THE SUPREME COURT OF INDIA
CRIMINALAPPEAL NO.275 OF 2014 [Arising out of Special Leave Petition (Criminal) No. 4857 of 2008]
Vishal Agrawal & Anr. …............ Appellant(s)
JUDGMENT
2.A pure question of law which arises for consideration is: whether the amendment in Section 151of the Electricity Act, 2003 (hereinafter referred to as the Act] which empowers the Court to take cognizance of an offence upon a report made by the police under Section 173 of the Code of Civil Procedure [hereinafter referred to as the Code], would be applicable to the pending complaints filed before the aforesaid amendment. To answer this question, scope and interpretation of Section 151, as it stood prior to the amendment, also needs to be considered. This issue has arisen in the following set of facts:
3.The respondent, viz. Chhattisgarh State Electricity Board (hereinafter to be referred as the 'Board') is the supplier of electricity in the State of Chhattisgarh. The
Page 2 appellants are the consumers of the Electricity and getting supply thereof through the Electricity connection provided by the Board. As per the Board, the appellants were found committing theft of the electricity which was revealed on 23.3.2006 when the Electricity meter of the appellant was inspected by the Inspection Team of the Board. It transpired that instead of the approved 55.204 KW, the appellants were using load of 59.810 KW and the meter was also tampered with. The Board made a complaint to the Station House Officer (SHO), Police Station, Civil Lines, Bilaspur. On the aforesaid allegations with request to the SHO to register a FIR against the appellants on the basis of a complaint dated 30.3.2006, the FIR was registered by the SHO on 31.3.2006 being FIR No. 227 of 2006 under Section
135/126 of the Act. After investigating into the matter, officer in-charge of the
Police Station filed the challan before the Special Judge, Bilaspur who passed orders dated 30.6.2006 taking cognizance of offence under the aforesaid provisions of the Act.
4.Against this order, the appellants filed quashing petition before the High Court on the ground that the Assistant Engineer had no authority to make any written complaint and the Special Judge could not have taken cognizance of the offence without complying with the provisions of Section 151 of the Act. This petition was disposed of by the High Court with a direction to the appellants to approach and raise the said objection before the Special Judge. On that basis, the aforesaid plea
Page 3 was pressed before the Special Judge as well by filing an application to this effect.
The contention of the appellants was found convincing by the Special Judge who passed orders dated 26.9.2006 thereupon holding that since the complaint had not been made by the officers named in Rule 9 of the Chhattisgarh State Electricity
Rules, 2006, cognizance thereof could not be taken. As a sequittor, the appellants were discharged from the case. At the same time liberty was also given to the Board to take appropriate action in accordance with law.
5.The Board did not accept the aforesaid order and challenge the same before the
High Court by filing Criminal Revision on 4.2.2007. Within four months thereof the Electricity Act was amended by inserting, inter alia, Sections 151(A) and
151(B) to the said Act with effect from 15.6.2007. The High Court has by impugned order dated 26.2.2008, reversed the orders of the Special Judge holding that as per Rule 12 of Chhattisgarh State Electricity Rules, the police has been authorised by the Central Government to forward the complaint received by the officers authorised under Section 151 of the Electricity Act to the concerned Court and, therefore, the complaint was validly instituted.
6.Before we take note of the contentions advanced before the High Court and the manner in which the High Court has dealt with the same, it would be apt to reproduce relevant provisions of the Electricity Act as well as Chhattisgarh
Electricity Rules, interpretation whereof is involved in the present case.
Page 4 7.Section 151 of the Act, as it existed before the amendment, is as follows:
“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
Commissioner 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.”
In exercise of powers conferred by Section 176 of the Electricity
Act, 2003 the Central Government framed Electricity Rules, 2005, Rule 12 reads thus:-
“12. Cognizance of the Offence –
(1) The police shall take cognizance of the offence punishable under the Act on a complaint in writing made to the police by the appropriate Government or the appropriate Commission or any of their officers authorized by them in this regard or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be. (2)The police shall investigate the complaint in accordance with the general law applicable to the investigation of any complaint. For the purposes of investigation of the complaint the police shall have all the powers as available under the Code of Criminal Procedure, 1973. (3) The police shall after investigation, forward the report along with the complaint filed under sub-clause (1) to the Court for trial under the Act. (4) Notwithstanding anything contained in sub-clause (1), (2) and (3) above, the complaint for taking cognizance of an offence punishable under the Act may also be filed by the appropriate Government or the appropriate Commission or any of their officers authorized by them or a Chief Electrical Page 5 Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be directly in the appropriate Court. (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every special court may take cognizance of an offence referred to in Sections 135 to 139 of the Act without the accused being committed to it for trial. (6) The cognizance of the offence under the Act shall not in any way prejudice the actions under the provisions of the Indian Penal Code.” The principal Electricity Act, 2003 was further amended by the Electricity (Amendment) Act, 2007 and apart from other amendments in Section 151 of the prinicipal Act was also amended and provisions in Sections 151, 151(A), 151 (B) were inserted. In the Statement of Objects and Reasons for amending the Act, it was stated as under:
15. In that very judgment this Court also categorically pointed out that proviso to Section 151 of the Act was clarificatory in nature. This is so observed in para 9 Page 11 which is as follows: Therefore, considering the language of para 4 of the Statement of Objects and Reasons, it is clear that the amendment brought in is clarificatory in nature and as such it would take into its ambit even the pending matters and in that sense it would be a retrospective amendment.
16. Yet, there is one more reason given by the Court to hold that FIR with the police officer would be competent, as can be found from the following extracts from the said judgment:- There is one more reason why the High Court's order can be faulted. The High Court has clearly ignored the First Schedule of the Code of Criminal Procedure and more particularly the second part thereof, which is under the head “Classification of Offences against other laws”. The second entry reads as follows: If punishable with imprisonment for three years, and upwards but not more than seven years, then such offences are held to be cognizable, non-bailable and triable by the Court of Magistrate of the first class. Therefore, the High Court ought to have considered this provision which makes the first information report acceptable by the police in the sense that the police could investigate into the matter and if found guilty could have also filed a report under Section 173 Code of Criminal Procedure, before the Court on which the Court could have taken the cognizance of the offence.
17. In view of the aforesaid judgment of this Court, conclusively holding that amendment to Section 151 is clarificatory in nature and further that notwithstanding the provisions of Section 151 of the Act, a FIR could be filed with the police, the matter stands clinched in favour of the Board. However, at the same time we would Page 12 like to elaborate the view taken by this Court in the aforesaid judgment.
18. It would be essential to first take note of the relevant provisions of the Electricity Act and the Code of Criminal Procedure. The five provisions of the Electricity Act which are referred to are Sections 135, 138, 151, 154 and 175 and these may be reproduced at this stage:
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be 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 Page 13 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 than if it is proved that any artificial means or means not authorised 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 office authorised 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 or is being], used unauthorisedly; (b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which [has been or is being], used for unauthorised use of electricity; Page 14 (c)examine or seize any books of accounts 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 there from 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 place 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. Xxxxx
(c) lays or causes to be laid, or connects up any works for
Page 15 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. Xxxxx
19. As far as the scheme of the Code of Criminal Procedure (hereinafter referred to as the 'Code') is concerned, it is essential to point out that it demarcates the offences into two categories, namely, 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. Section 154 of the Code 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 First Information Report. 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 Page 19 completion of investigation.”
20. Here, the provisions of Section 4 of the Code become relevant which provide a complete answer to the submission of the appellant. It reads: “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 investigation, inquiring into, trying or otherwise dealing with such offences.”
21. It is apparent from the reading of Section 4 that provisions of the Code would be applicable where an offence under the IPC or under any other law is being investigated, inquired into, tried or otherwise dealt with. These offences under any other law could also be investigated, inquired into or tried with according to the provisions of the Code except in case of an offence where the procedure prescribed there under is different than the procedure prescribed under the Code. It is so specifically provided under Section 155 of the Electricity Act also. Thus, it is not a case where any special or different procedure is prescribed. Rather, the procedure contained the Code is made applicable for the offences to be tried under Page 20 the Electricity Act as well.
22. We would like to discuss here the judgment in the case of In M. Narayandas v. State of Karnataka and Ors.2004 CriLJ 822, which has direct bearing on the issue at hand. The question arose as to whether Section 195 and Section 340 of the Code. affect the power of police to investigate into a cognizable offence. Section 195 provides for prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. It also states that no Court shall take cognizance of the offences specified therein except on a complaint in writing of that Court or of some other Court to which that Court is subordinate. Section 340 of the Code prescribes the procedure as to how the complaint may be preferred under Section 195 of the Cr.P.C. Alleging that the accused had committed an offence under Section 195, the complainant had made a complaint to the police and police had initiated investigation thereon. The accused/respondent had contended that since the case was filed under Section 195 of the Code it was provisions of Chapter XVI of the Code which would apply and not Chapter XII thereof (relating to investigation by the police). This contention was rejected in the following manner: “8. We are unable to accept the submissions made on behalf of the respondent. 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 Page 21 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; 1998 Cri LJ 1104. In this case it has been held as follows: We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondent 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 in, or in relation to, any proceeding under the Code is not in any way controlled or circumscribed by Section 195 CrPC. It is of 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 filing 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. D. Raja Reddy; 1983 (3) SCR 836 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 Page 22 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. Section 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 place 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 of the Criminal Procedure Code is followed. Thus no right of the respondent much less the right to file an appeal under Section 341, is affected.”
23. 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 no other avenue is opened and the complaint/FIR cannot be lodged with the police. 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 the Code. 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, we are of the opinion that the respondent's Counsel is right in his submission that if the offence under the Code 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. Page 23 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.
24. In this backdrop, the notification dated 8.6.2005 issued by the Central Government in exercise of powers under Section 176 of the Electricity Act also requires a mention. Vide this notification the Electricity Rules, 2005, have been framed and Rule 12, which is relevant, reads as under: 12 (1) The police shall take cognizance of the offence punishable under the Act on a complaint in writing made to the police by the Appropriate Government or the Appropriate Commission or any of their officer authorized by them in this regard or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be. (2)The police shall investigate the complaint in accordance with the general law applicable to the investigation of any complaint. For the purposes of investigation of the complaint, the police shall have at the powers as available under the Code of Criminal Procedure, Page 24
1973. (3) The police shall after investigation, forward the report along with the complaint filed under Sub-clause (1) to the Court for trial under the Act. (4) Notwithstanding anything contained in Sub-clauses (1), (2) and (3) above, the complaint for taking cognizance of an offence punishable under the Act may also be filed by the Appropriate Government or the Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be directly in the appropriate Court. (5) Notwithstanding anything contained in the Code of Criminal Procedure 1973, every special Court may take cognizance of an offence referred to in Section 135 to 139 of the Act without the accused being committed to it for trial.”
25. In view of the aforesaid discussion, we hold that the decisions of Kerala High Court as well as Calcutta High Court and Madras High Court in Chacko, A.K. & Anr. Vs. Assistant Executive Engineer, K.S.E.B. (2010) 2 KLJ 569; Biswanath Patra Vs. Divisional Engineer AIR 2007 Cal 189; Ranjeet Kr. Bag Vs. State of West Bengal (2006) 1 C CrlJ (Cal) 334; Paramasivan vs. Union of India (2007) 2 KLT 733; Kumaran Chemicals (P) Ltd. Rep. By its Managing Partner D. Thillairaj and Page 25 Ors. vs. Government of Pondicherry rep. by the Inspector of Police MANU/TN/0584/2010 do not lay down correct law and the view taken by the High Court of Delhi in Abhay Tyagi v. State NCT of Delhi & Anr. and Asish Kumar Jain vs. State of Jharkhand (2010) CriLJ 271 is hereby approved.
26. As a result this appeal fails and is hereby dismissed with costs. ….… .................................... J. [K.S. RADHAKRISHNAN] … ...................................... J. [A.K. SIKRI] New Delhi