Judgment:
Tapan Mukherjee, J.
1. The C.R.R. is taken up for further hearing. Heard the learned Counsel for the State. The learned Counsel for the petitioner has already been heard.
2. This application has been filed for quashing the proceedings in G.R. Case No. 214 of 2003 arising out of Sonamukhi P.S. Case No. 37 of 2003 under Sections 39(1)(b)(c) and 44 of the Indian Electricity Act pending before the learned Additional Chief Judicial Magistrate, Bishnupur, Bankura.
3. It has been contended by the learned Counsel for the petitioner that the alleged occurrence took place on 18.7.2003. The FIR was lodged on that date and after investigation, the chargesheet has been submitted under Sections 39(1)(b)(c) and 44 of the Indian Electricity Act as amended by West Bengal Amendment Act of 2001 and the cognizance on the basis of such chargesheet was taken by the learned Magistrate on 29.9.2003. The Indian Electricity Act, 1910 has been repealed and the Electricity Act, 2003 came with effect from 10.6.2003. In view of Section 135 of the Electricity Act, 2003, the said Indian Electricity Act, 1910 has been repealed. So, the question of filing chargesheet under the provisions of Sections 39(1)(b)(c) and 44 of the Indian Electricity Act as amended by West Bengal Amendment Act, 2001 does not arise and the cognizance on the basis of the said chargesheet cannot be taken by the learned Magistrate and the entire proceeding is required to be quashed.
He has further submitted that if there was any prosecution against the accused that should have been under the provisions of Section 135 of the Electricity Act, 2003 and the Court can take cognizance of such offence on the basis of complaint only and not on the basis of the police report. The continuance of the proceedings under the repealed Indian Electricity Act, 1910 is an abuse of process of Court and in the interest of justice also that is required to be quashed.
4. The learned Counsel for the petitioner further contends that in Article 20(1) of the Constitution of India, the petitioner is to face the prosecution case on the basis of the Act which was in force on the date of commission of offence and the penal provision has no retrospective effect of any Act.
5. The learned Counsel for the State has contended that mere submission of chargesheet under the wrong section is not enough to quash the proceeding. Under Section 216 of the Criminal Procedure Code, the charge may be altered by the Court at any point of time under Section 216 of the Criminal Procedure Code.
6. Considered the submissions made. Perused and considered the chargesheet and other materials on record.
It appears that as per prosecution case on 18.7.2003, the Assistant Engineer, West Bengal State Electricity Board had been to the husking mill of the petitioner and checked his meter and found that the said meter was tampered with fake seals which were seized. The FIR was lodged on 18.7.2003 and after investigation, chargesheet was submitted on 31.7.2003 and on 29.9.2003, the learned Magistrate took cognizance on the basis of the said chargesheet under the provisions of the Indian Electricity Act, 1910. Such cognizance has been challenged and the entire criminal proceeding pending under the provisions of the Indian Electricity Act, 1910 has also been challenged to be illegal and prayer for quashing the same has been made.
7. It appears that the Indian Electricity Act, 1910 (Act 9 of 1910) was repealed the provisions of Section 135 of the Electricity Act, 2003 which came into force with effect from 10.6.2003. So, obviously on the date of occurrence, the Indian Electricity Act, 1910 was a repealed Act and no prosecution can be started and no cognizance can be taken on the basis of chargesheet submitted under the Indian Electricity Act, 1910. So, obviously the criminal proceeding instituted against the petitioner/accused is illegal and the cognizance on the basis of the police report submitted under the Indian Electricity Act, 1910 is also illegal and without jurisdiction and the same cannot stand. As the proceeding is instituted under the provisions of the Indian Electricity Act, 1910 when the same was repealed Act and this is the early stage of proceeding and the cognizance is bad and it has not reached the stage of framing charge. So, the provision of Section 216 of the Criminal Procedure Code is not attracted in this case. As this is not a case under Section 135 of the Electricity Act, 2003 so, I need not enter into the question whether the cognizance can be taken on the basis of police report.
8. In the circumstances, the continuance of the criminal proceeding against the petitioner/accused under the Indian Electricity Act is an abuse of process of Court and the same must be quashed.
9. The instant petition filed by the petitioner/accused is allowed. The criminal proceeding against the accused/petitioner Being G.R. Case No 214 of 2003 arising out of Sonamukhi Police Case No. 37 of 2003 dated 18.7.2003 under Sections 39(1)(b)(c) and 44 of the Indian Electricity Act, 1910 as amended by the West Bengal Amendment Act, 2001 and the chargesheet submitted under the Indian Electricity Act, 1910 are hereby quashed.
10. The Criminal Section is directed to send a copy of this order to the learned Additional Chief Judicial Magistrate, Bishnupur, Bankura for information and necessary action.
11. The Criminal Section is directed to supply the certified copy of this order, if applied for, to the learned Counsel for the parties expeditiously.