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Madhya Pradesh High Court · body

2008 DIGILAW 796 (MP)

Sanju @ Sanjay v. State Of M. P.

2008-06-28

S.L.KOCHAR

body2008
JUDGMENT : The appellant has preferred this appeal against the judgment dated 28-3-2006 passed in Special Criminal Case No. 17/04 by learned Special Judge, Khachrod, whereby convicted the appellant for the offence punishable under section 137 of the Electricity Act, 2003 (for short "the Act"), and sentenced to R.I. for three years and fine of Rs. 5,000/-, in default of payment of fine additional R.I. for six months. 2. According to prosecution case in the intervening night 23rd and 24th May, 2004 some unknown persons committed theft of wire of eclectic line situated within the boundary of village Chowki. The incident was reported by the Assistant Lineman Shri Roopsingh to Assistant Engineer Ashok Vyas, who reached on the spot and prepared Panchnama Ex.P/1 as well as lodged the written report Ex.P/2 in the police station Khachrod. On the basis of this report, police registered Crime No. 267/04 under section 379 of the Indian Penal Code and investigation was commenced by Sub-Inspector T.K.S. Chouhan. From the possession of the appellant aluminum wire and other articles were seized. The seized wire were identified by junior Engineer Shri R. K. Joshi. On due investigation, charge-sheet was filed against six accused persons for commission of offence under section 136 as well as 137 of the Act. 3. The accused persons denied the charges and they have not examined any witness in defence. The learned trial Court while acquitting other co-accused persons Rajaram, Babulal, Arjun and Bhanwar convicted the appellant as indicated hereinabove. 4. Having heard the learned counsel for the parties and after perusing entire record, this Court is of the view that investigation of the offence punishable under sections 136 and 137 of the Act was without jurisdiction by the police, as per provision under section 151 of the 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 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. - 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. In view of the above provision, the learned trial Court was not having jurisdiction to take cognizance of the offences punishable under this Act on the basis of the investigation and report filed by the police as per provision under section 173 of the Criminal Procedure Code, cognizance could be taken only on the basis of complaint in writing filed by appropriate Government or appropriate commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or Licency or the Generating Company. The complaint was not filed either of these authorities, therefore, taking of cognizance by the learned trial Court for the offences under the Act is wholly illegal and without jurisdiction, therefore, whole trial is vitiated. 6. It appears that in a case like this and other cases regarding theft of electric wire and other equipments required for the purposes of fixing electric lines and the offences if committed by unknown persons, it required well equipped and trained investigating agency and the authorities mentioned in section 151 of the Act could not be in a position to investigate the crime and caught the culprit, therefore, legislation thought to make an amendment in the Electricity Act No. 36/2003 and made the amendment by the Electricity (Amendment) Act, 2003, Act No. 26/2007 and amended various provisions including insertion of new sections 151-A and 151-B giving power to police to investigate for the offences falling under Electricity Act and certain offences are also made cognizable and non-bailable i.e. sections 135 to 140 and section 150 of the Act. Section 151 is also amended providing taking of 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 by a Special Court constituted under section 153 of the Act. 7. Section 151 is also amended providing taking of 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 by a Special Court constituted under section 153 of the Act. 7. In view of the abovementioned legal position, the filing of the charge-sheet by the police as per provision under section 173 of the Criminal Procedure Code for commission of offences punishable under sections 136 and 137 of the Act and taking of cognizance on the charge-sheet by the Court below is wholly without jurisdiction in view of unamended provision under section 151 of the Act, which was prevalent at the time of registration of the crime as well as taking of cognizance by the Court. Since, the appellant has been tried by the Court having no jurisdiction, therefore, whole trial would be illegal and liable to be vitiated. 8. In Madhya Pradesh, this Act has come into force after six months from the appointed date i.e. 10th June, 2003. As per notification No. 6372-XIII-2003 dt. 8th October, 2003 in exercise of powers conferred by sub-class D of section 173 of the Electricity Act, 2003 (No. 36/2003). 9. In the result, this appeal is allowed, conviction and sentence of the appellant passed by the Court below are hereby set aside and appellant is acquitted from the charge under section 137 of the Act. Appellant is on bail, his bail and surety bonds stand discharged. Office is directed to send a copy of this judgment along with the record of the trial Court to the trial Court for its compliance.