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2010 DIGILAW 2227 (ALL)

Mahendra Kumar Verma v. State of U. P.

2010-07-28

VINOD PRASAD

body2010
JUDGMENT (1) Heard learned counsel for the applicant, learned A.G.A. and perused the material on record. (2) Being an accused the prayer made by the applicant in the instant Crl. Misc. Application is to quash charge sheet dated 30.4.2009 vide Crime No. 555 of 2009 which has resulted in registration of Case No. 13 of 2010, State versus Mahendra and another in the court of Special Judge, E.C. Act, Budaun, under sections 188, 268 I.P.C. and section 135 Indian Electricity Act, P.S. Civil Line, District Budaun. Under the scheme of Electricity Act 2003, (hereinafter referred to as the Act), section 151 provides as follows :- "Cognizance of offences.- No court shall take cognizance of an offence punishable under the 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: [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: 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.]" (3) Perusal of the aforesaid section clearly depicts that cognizance of an offence under the act can be taken on the basis of complaint in writing made by the appropriate Government, appropriate Commission or any of their officers authorised by them or Chief Electrical Inspector or a Electrical Inspector or licensee or Generating company as the case may be. Subsequently vide Amending Act 26 of 2007 which came into force on 15.6.2007 it was also added that cognizance for the offences punishable under the Act can also be taken upon a report of police officer filed under section 173 of the Code. Another proviso added by the same Amending Act provided that Special court constituted under section 153 of the Code can take cognizance of the offence without the accused being committed to it for trial. Another proviso added by the same Amending Act provided that Special court constituted under section 153 of the Code can take cognizance of the offence without the accused being committed to it for trial. In view of the aforesaid amendment which came into light on 15.6.2007, the contention of learned counsel for the applicant that cognizance can be taken only on the basis of a complaint made by the authorised persons is not acceptable. The words of the statute are clear and ambiguous. Nothing can be added in the enacted statute so as to make operation of the enacted provision nugatory. Section 151, does not prohibit lodging of an F.I.R. by an individual person. Merely because cognizance can be taken on the basis of a charge sheet under section 173 or on the basis of complaint lodged by the persons mentioned under section 151 of the Act does not divest the power of an individual citizen to lodge a First Information Report regarding electricity theft. It is recollected that offence under section 135 is a cognizable offence as is provided under section 151-A read with 151-B of the Act. (4) FURTheR perusal of section 151 indicate that the complaint can be made by a licensee also. Under section 135(1A) it has been provided that without prejudice to the provisions of the Act the licensee or supplier as the case may be upon discovery of theft of electricity can disconnect immediately its supply. Licensee has been defined under section 2(39) of the Act, which means a person who has been granted a license under section 14 of the Act. It is recalled that under section 14 appropriate commission on the application made to it grant a license to any person, thus, the intention of the legislature is very clear that in a matter of theft of electricity anybody can lodge an F.I.R. Even otherwise, also if a cognizable offence is disclosed, every individual has a right to lodge an F.I.R. under section 154 of the Code of Criminal Procedure. Section 155 of the Act provides applicability of the provision of the Code, so far as it is not inconsistent with the provisions of the Act. Section 155 of the Act provides applicability of the provision of the Code, so far as it is not inconsistent with the provisions of the Act. For a ready reference section 155 of the Electricity Act is referred to below:- "Special Court to have powers of Court of Session.- Save as otherwise provided in this Act, the Code of Criminal Procedure, 1973 (2 of 1974), insofar as they are not inconsistent with the provisions of this Act, shall apply to the proceedings before the Special Court and for the purpose of the provisions of the said enactments, the Special Court shall be deemed to be a Court of Session and shall have all powers of a Court of Session and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor." (5) In view of the above discussion, the contention of learned counsel for applicant that an individual cannot lodge an F.I.R. of electricity theft is not tenable and hereby repelled. (6) ADDITIONALLY taking cognizance of an offence and lodging of an F.I.R. are different legal formalities altogether. Under section 154 of the Code an F.I.R. can be lodged by an individual but cognizance of an offence under section 190 has to be taken by a court of competent jurisdiction. Both cannot be clubbed and hence section 151 of the Act cannot be an impediment to over ride section 154 of the Code. Learned counsel for the applicant next submitted that offences under sections 188 and 268 I.P.C. are not cognizable offences and under section 195 of the Code cognizance of those offences could be taken only after removal of condition provided under section 195 of the Code. Be that as it made, it is a matter to be considered by the Trial court at the stage of framing of charge. Because of applicability of section 195 of the Code as has been contended by learned counsel for the applicant, a valid prosecution under section 135 of the Electricity Act cannot be quashed. (7) In above view, I am not inclined to quash prosecution of the impugned charge- sheet dated 30.4.2009. (8) This Crl. Misc. Application is bereft of merit and is dismissed. Application dismissed.