IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE7H DAY OF JANUARY201417TH POUSHA, 1935 Crl.MC.No. 4382 of 2011 ( ) ---------------------------- CC. NO.8/2009 OF ADDITIONAL SESSIONS COURT, NORTH PARAVOOR. ....... PETITIONER/ACCUSED: ---------------------------------- P.I. POLEY,AGED57YEARS, S/O. IYPE, PUTHUSSERRY HOUSE, ALLAPARA P.O., PERUMBAVOOR, MANAGING PARTNER, NAVARATHNA RICE PRODUCTS, NEELISWARAM P.O., KALADY. BY ADVS.SRI.V.JOHN SEBASTIAN RALPH, SMT.PREETHY KARUNAKARAN, SRI.K.J.JOSEPH (ERNAKULAM). RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY S.I. OF POLICE, KALADY POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN - 31. BY PUBLIC PROSECUTOR MR.REJI JOSEPH. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON0701-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. Crl.MC.No. 4382 of 2011 APPENDIX PETITIONER'S ANNEXURES:- ANNEXURE1COPY OF THE FINAL REPORT IN CRIME NO.208/2007 OF KALADY POLICE STATION, NOW PENDING AS CC NO.8/2009 ON THE FILE OF THE ADDL. SESSIONS COURT, NORTH PARAVOOR. ANNEXURE2COPY OF THE RECEIPT ISSUED BY KSEB DATED2603/2008. ANNEXURE3COPY OF THE RECEIPT ISSUED BY KSEB DATED2104/2007. RESPONDENT'S ANNEXURES:- NIL. //TRUE COPY// P.A. TO JUDGE rs. A.HARIPRASAD, J.
------------------------------------------------ Crl.M.C.No.4382 of 2011 ------------------------------------------------ Dated this the 7th day of January, 2014. ORDER
Petitioner challenges the prosecution in C.C No.8/2009 on the file of the Additional Sessions Court, North Paravoor. He is accused of offences punishable under Sections 135, 137 and 150 of the Electricity Act, 2003. Prosecution case in brief is that the accused was found indulging in theft of electrical energy on 23-03-2007. After investigation, police filed Annexure 1 final report on 05-05-2007.
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
3. Relying on the decision rendered by Division Bench of this court in Ajayan P and another v. State of Kerala and Others (2011(3) KHC622 (DB), it is contended that the prosecution is incompetent. Learned counsel for the petitioner would argue that the learned Magistrate could not have taken cognizance on a police report prior to the amendment of the Electricity Act, 2003 on 15-06-2007. Learned counsel for the petitioner would contend that Crl.M.C.No.4382 of 2011 2 the entire amount found to be due from the petitioner as energy charges was paid. It is also found by the Division Bench that the amendment to Section 151 of the Electricity Act is prospective in nature. Following is the finding : " A perusal of the aforesaid provisions will clearly indicate that until 15/06/2007 with effect from which the amendment came into force, a Court could take cognizance of the offences punishable under the Act only on a complaint in writing and that too made by the appropriate Government or appropriate commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or a licensee or the generating company as the case may be. In other words, the Police did not figure as one of the authorities enumerated under the said provision with power either to file a complaint or to file a Police report. The Court was given the power to take cognizance of an offence upon a report filed by a Police Officer under Section 173(2) Cr.P.C only for the first time with effect from 15/06/2007 with the introduction of first proviso to Section 151 Crl.M.C.No.4382 of 2011 3 of the Act. No body had entertained any doubt prior to the above amendment that there was a statutory interdict against the Magistrate taking cognizance on a Police report. Even the Referring Judge has made it explicitly clear that before the above amendment there was a statutory bar against the Court taking cognizance of an offence under the Act except upon a complaint in writing preferred by the empowered officers as provided under Section 151 of the Act. To put it differently, there was absolutely no confusion in any quarters that cognizance could be taken only on a complaint and that it was only the persons enumerated under Section 151 who could file such complaint. More specifically, nobody had any doubt that the Police did not have any authority to file any Police report and the Magistrate also could not have taken cognizance upon a Police report." 4. It is seen that the prosecution in this case launched by Annexure 1 final report is legally unsustainable. Annexure 1 is liable to be quashed. Crl.M.C.No.4382 of 2011 4 Therefore, the Crl.M.C is allowed. The entire proceedings in C.C No.8/2009 on the file of the Additional Sessions Court, North Paravoor are hereby quashed. All pending interlocutory applications will stand dismissed. Sd/- A.HARIPRASAD, JUDGE. //True Copy// P.Ato Judge amk