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2007 DIGILAW 983 (MP)

FAREED BAIG v. STATE OF M P

2007-09-11

RAKESH SAKSENA

body2007
Judgment ( 1. ) APPLICANTS have filed this revision against the order dated 24-5-2007 passed by Special Judge, Begamgunj, District Raisen, in Special Sessions Trial no. 05 of 2007, framing charge against them under Section 138 of the Indian electricity Act besides Section 429 of the IPC and Section 11 of the Cattle trespass Act. ( 2. ) LEARNED Counsel for the applicants submits that the learned special Judge has committed illegality in taking cognizance against applicants for the offence under Section 138 of the Indian Electricity Act, 2003, (hereinafter referred to as the said Act) on the basis of charge-sheet filed by police before it. He submits that in view of the provisions of Section 151 of the said Act no Court can take cognizance of an offence punishable under the said act except upon a complaint in writing made by appropriate Government or appropriate Commission or any of their officers authorized by them or a Chief electrical Inspector or a Electrical Inspector or licensee or the Generating company as the case may be for the purpose. He submits that since the offence punishable under Section 138 of the said Act is triable only by the Special Court, the Special Court cannot take cognizance directly without the case being committed to it by Magistrate. Referring to the provisions of Section 155 of the said Act learned Counsel submitted that the provisions of the Code of Criminal procedure in so far as they are not inconsistent with the provisions of the said act, shall apply to the proceeding before the Special Court and for the purpose of the provisions of the said Act Special Court shall be deemed to be a Sessions court. ( 3. ) LEARNED Counsel for the State pointed out the amendments brought in force by Electricity (Amendment) Act, 2007, i. e. , Act No. 26of 2007. This Amendment Act received assent of the President on 28th May, 2007. ( 4. ) ON perusal of the provisions of Section 15 of the Amendment Act it is found that in Section 151 of the Principal Act it has been added that the Court may also take cognizance of an offence punishable under the said Act upon a report of a Police Officer. For ready reference, Section 15 of the Amendment act is quoted hereunder:- "15. For ready reference, Section 15 of the Amendment act is quoted hereunder:- "15. Amendment of Section 151.- In Section 151 of the Principal act, the following provisions shall be inserted, namely:-"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, 1972 (2 of 1974): provided further that Special Court constituted under Section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial. " ( 5. ) IN view of the amendment of Section 151 of the said Act, the Special court has been vested with the jurisdiction to take cognizance of the offence punishable under the said Act upon a report of the police office filed under section 173 of the Code of Criminal Procedure directly without the case being committed to it for trial. ( 6. ) BY Section 16 of the Amendment Act new Sections 151-A and 151-B have also been inserted after Section 151 of the Principal Act. The said sections are as under:- "151-A. Power of police to investigate.- For the purposes of investigation of an offence punishable under this Act, the Police officer shall have all powers as provided in Chapter XII of the Code of Criminal Procedure, 1973 (2 of 1974 ). 151-B. Certain offences to be cognizable and non-bailable.-Notwithstanding anything contained in the Code of Criminal procedure, 1973 (2 of 1974), an offence punishable under Sections 135 to 140 or Section 150 shall be cognizable and non-bailable. " Perusal of the aforesaid provisions indicates that the offences under the indian Electricity Act can be investigated by a Police Officer as provided in chapter XII of the Code of Criminal Procedure and the offences punishable under Sections 135 to 140 or Section 150 shall be cognizable and non-bailable. ( 7. ) LEARNED Counsel for the applicants submits that the aforesaid provisions inserted by the Amendment Act, 2007, cannot be given retrospective effect. He placed reliance on the decision in the case of Manohar Dairy and restaurant, Bhopal Vs. ( 7. ) LEARNED Counsel for the applicants submits that the aforesaid provisions inserted by the Amendment Act, 2007, cannot be given retrospective effect. He placed reliance on the decision in the case of Manohar Dairy and restaurant, Bhopal Vs. Employees State Insurance Corporation [ 2007 (3) MPLJ 355 ] : 2007 (3) M. P. H. T. 174, wherein it has been held that it is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. ( 8. ) WITH due respect, the above proposition of law is not applicable in the present case, because in contrast to statutes dealing with substantive rights, statutes dealing with merely matters of procedure are presumed to be retrospective unless such a construction is textually inadmissible. As stated by lord Denning : "the rule that an Act of Parliament is not to be given retrospective effect applies only to statutes which affect vested rights. It does not apply to statutes which only alter the form of procedure or the admissibility of evidence, or the effect which the Courts give to evidence. If the new Act affects manners of procedure only, then, prima facie, it applies to all actions pending as well as future. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode". ( 9. ) THE Apex Court in the case of Gurbachan Singh Vs. Satpal Singh and others, (1990) 1 SCC 445 , while considering the application of Section 113-A of the Indian Evidence Act when inserted in the Statute Book by Act No. 46 of 1983 observed:- "37. The provisions of the said section do not create any new offence and as such it does not create any substantial right but it is merely a matter of procedure of evidence and such it is retrospective and will be applicable to this case. The provisions of the said section do not create any new offence and as such it does not create any substantial right but it is merely a matter of procedure of evidence and such it is retrospective and will be applicable to this case. It is profitable to refer in this connection to Halsburys Laws of England, Fourth edition, Volume 44 Page 570, wherein it has been stated that:-"the general rule is that all statutes, other than those which are merely declaratory or which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature 38. It has also been stated in the said volume of Halsburys Law of england at Page 574 that:-"the presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament. " ( 10. ) IN the case of Hitendra Vishnu Thakur Vs. State of Maharashtra [ (1994) 4 SCC 602 ] the Apex Court held :- "36. . . . . . . From the law settled by this Court in various cases the illustrative though not exhaustive principles, which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows:- (i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in substantive law but no such right exists in procedural law. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in substantive law but no such right exists in procedural law. (iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication. " ( 11. ) IN view of the above proposition of law, I am of the opinion that the amendments made by the Amendment Act No. 26 of 2007, in respect of investigation of the offences under the said Act and the procedure for their trial, would operate retrospectively. As such the investigation conducted by the police and the cognizance taken by the Special Court on the report filed by police under Section 173 of the Code of Criminal Procedure cannot be held to be illegal or without jurisdiction. In this view of the matter, there appears no substance in this revision. It is accordingly dismissed.