Research › Search › Judgment

Andhra High Court · body

2008 DIGILAW 905 (AP)

State of A. P. v. Porlakayala Rangaiah

2008-10-21

GOPALA KRISHNA TAMADA

body2008
JUDGMENT Respondent herein is the proprietor of M/s. Ramakrishna Slab Polishing Industry, situated at Mettupalli village of Owk Mandai in Kurnool District. On 20.01.2001 at about 8.10 A.M., when the Assistant Divisional Engineer (PW.1), DPE-II, Kurnool and the Assistant Engineer, DPE-II, inspected the said Industry, they found pilferage of electrical energy by the respondent by tapping the energy from section fuse carriers near the L.T. Pole by means of black and red colored PVC copper wires of 1 0 meters of length and connecting the ends with load fuse carrier outgoings duly removing the fuse carrier tops. They estimated the loss sustained due to pilferage of energy at Rs. 7,39.485/-. Later, they prepared inspection notes and seized incriminating material. Thereafter, PW.110dged a complaint against the respondent, which was registered by the Inspector of Police (PW.12), Vigilance and APTS police Station, APCPDCL, Kurnool, as Crime NO.86 of 2001 and investigated into. After completion of investigation, charge sheet was laid against the respondent, which was taken on fileas TRANSCO C.C.No.31 of 2003 by the learned I Additional District & Sessions Judge-cum-Special Court under Indian Electricity Act (A. P. Amendment 2000) 1910, Kurnool. for the offences punishable under Sections 39 and 44 of the Electricity Act, 2003 (for short "the Act"). 2. During trial, P.Ws.1 to 13wereexamined and Exs.P2toP49and M.0.1 were marked on behalf of the prosecution. On the other hand, D.W.1 was examined and Ex.D1 and EX.X1 were marked on behalf of the defence. 3. On an appraisal of both oral and documentary evidence, the trial Court acquitted the respondent of the said offences on the grounds that there was no committal order and the Special Court took the charge sheet on file straight away, and that a wrong person was tried. Assailing the said judgment. State preferred this Criminal Appeal. 4. The learned Additional Public Prosecutor vehemently contended that the Special Court is empowered to take cognizance of the offences committed by the respondent straight away and the question of committal for the special enactment does not arise. In support of the said contention, the learned Additional Public Prosecutor laid emphasis on Rule 12(5) of the Electricity Rules, 2005, framed under the provisions of the Electricity Act, 2003, which deals with taking of cognizance by the Special Courts without the accused being committed to it for trial. 5. In support of the said contention, the learned Additional Public Prosecutor laid emphasis on Rule 12(5) of the Electricity Rules, 2005, framed under the provisions of the Electricity Act, 2003, which deals with taking of cognizance by the Special Courts without the accused being committed to it for trial. 5. Opposing the said contention, Sri G. Nageswara Rao, learned counsel for the respondent, contended that committal of the accused is a must and in that context, the learned counsel has placed reliance on the judgment of the Supreme Court in Gangula Ashok v. State of Andhra Pradesh', and also an unreported judgment of this Court dated 13.10.2006 in CrI.A.NO.29 of 2004. 6. The main issue involved in this Criminal Appeal is as to whether the special court is empowered to take cognizance of the offences under the Ace without the accused being committed to it for trial. 7. The subject matter in this appeal is no longer res integra. It is true that in the absence of committal by a court of competent jurisdiction, the Special Court cannot take cognizance of any offence straight away. However, a full bench of the Kerala High Court in Harindran v. Sarada2 has taken the view that committal proceedings are not required and it is rather difficult to hold that committal proceedings is indispensable as a prelude to the case being tried by the Special Court. It was further observed in the said judgment that there is nothing in the Act (SCs & STs (POA) Act) to indicate that Special Court would get jurisdiction only on a committal order of the Magistrate. Dissenting with the said view, the Supreme Court in Gangula Ashok's case (1 supra), has taken the view that in view of Section 193 of the Code of Criminal Procedure, 1973 (Cr.P.C), committal order is a must unless it is strictly made clear in the special enactment that committal order is not required. Dissenting with the said view, the Supreme Court in Gangula Ashok's case (1 supra), has taken the view that in view of Section 193 of the Code of Criminal Procedure, 1973 (Cr.P.C), committal order is a must unless it is strictly made clear in the special enactment that committal order is not required. In this context, it may beaptto refer to para 20 of the judgment of the Supreme Court, which reads as under: The very approach of the Full Bench of the Kerala High Court seems to be that there should be specific indication in the Act that the Special Court gets jurisdiction to try the offence only on a committal order, and in the absence of such specific indication the Special Court must have the right to take cognizance of the offence as though it is a Court of original jurisdiction. We have pointed out above that unless there is express provision to the contrary in any other law the interdict contained in Section 193 of the Code cannot be circumvented. Hence the reasoning of the Full Bench in Hareendran v. Sarada, (1995 AIHC 4542) (supra) is apparently fallacious. When the above judgments and the Act are juxtaposed, it is clear that Special Court has clearly erred in taking cognizance straight away without there being a committal. 8. However, now the situation is different. In exercise of powers conferred under Section 176 of the Electricity Act 2003, the Central Government framed Electricity Rules 2005 (for short "the Rules") and the same were published in the Gazette of India, vide G.S.R.379(E) dated 81h June 2005. Rule 12 of the Rules deals with cognizance of offences and it may be necessary to refer to Sub-Rule (5) of Rule 12 of the Rules, which is as follows: "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." 9. The very intention of the legislature shall be clearly understood, because a no ostensible clause was introduced to the effect that every special court can straight away take cognizance. As the Rules have come into force with effect from 08.06.2005, if a special court takes cognizance of an offence under the provisions of the Act, it cannot be said to be fallacious. As the Rules have come into force with effect from 08.06.2005, if a special court takes cognizance of an offence under the provisions of the Act, it cannot be said to be fallacious. However, for those offences, which have taken place prior to introduction of the Rules, it can definitely be said that the Special Court clearly erred in taking cognizance straight away. In face the Supreme Court in Gangula Ashok's case (1 supra) has also clearly held that when there is an express provision to the contrary in any other law, the interdict contained in Section 193 of Cr.P.C. cannot be circumvented. 10. In the light of the Rules, which came into force with effect from 08.06.2005, it is clear that the special Court can definitely take cognizance of the offences committed after introduction of that Rules, with out there being a committal order by a competent Judicial Magistrate of I Class. Though this appeal is heard in the year 2008, this Court is conscious of the fact that the alleged offence took place on 20.01.2001, by which time, the Rules were not in existence and hence, this Court can definitely hold that the cognizance taken by the Special Court is hit by Section 193 of the Code, 11. For the foregoing reasons, this Court is of the view that the trial Court is justified in recording acquittal of the respondent. There are no merits in this appeal and the same is liable to be dismissed, 12. In the result, the Criminal Appeal is dismissed.