Calcutta High Court
Ranjit Kumar Bag, Additional District ... vs State Of West Bengal on 3 May, 2005
Equivalent citations: 2006(1)CHN445
JUDGMENT S.P. Talukdar, J.
1. The present case arises out of a reference under Section 395(2) of the Criminal Procedure Code made by learned Additional District & Sessions Judge-cum-Judge, Special Court, Tamluk, Purba Midnapore.
2. The backdrop of the present reference may briefly be sated as follows:
On the basis of written information given by the Superintendent of Moyna Group Electric Supply on 27th January, 2004, police authority started a case under Section 135 of the Electricity Act, 2003 read with Section 379 of the Indian Penal Code, being Sessions Case No. (E) 5(2) 2004. It was alleged that on 21.01.2004, one Netai Maity was found tapping energy dishonestly from incoming terminal point of meter installed by the West Bengal State Electricity Board in the premises of the said person. Police after completion of investigation submitted report under Section 173 of the Code of Criminal Procedure. Learned Sub-divisional Judicial Magistrate transferred the said case to the said Learned Court of Special Judge as the former held that it had no jurisdiction to try the case under the Electricity Act, 2003.
3. Learned Special Judge while referring the matter under Section 395(2) of the Criminal Procedure Code narrated the entire background of the case and sought for decision on the two issues which are set out as follows :
i) Can the Special Court constituted under Section 153 of the Electricity Act, 2003 take cognizance of offences punishable under the said Act on the basis of police report submitted under Section 173 of Cr. PC ?
ii) Can the police authority invoke provision of Section 379 of Indian Penal Code along with Section 135 of the Electricity Act, 2003 for registration of FIR with regard to theft of electricity?
4. It appears that the learned Judge took into consideration the fact that the punishment prescribed for the offence under Section 135 of the Electricity Act can be extended upto three years and, as such, learned Court was of the view that such offence can be treated as cognizable and non-bailable, following the second part of the First Schedule to the Code of Criminal Procedure. The facts which constitute a cognizable offence when placed before the police authority, be it in the form of FIR, the police authority has no option but to register the case. It also cannot be denied that when a cognizable offence is reported before the police authority, the investigation has to commence subject to two conditions i.e., (1) police officer should have reason to suspect commission of cognizable offence, and (n) he has to subjectively satisfy himself as to existence of sufficient ground for entering on investigation.
5. In response to our request learned Advocate General, Mr. Balai Ray, appeared in the case and submitted that the functions of the judiciary and the police are complementary, not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case. Mr. Ray referred to the decision in the case of State of Haryana and Ors. v. Bhajan Lal and Ors. . It appears that in connection with the said case the Apex Court referred to the decision of the Privy Council in Emperor v. Khwaja Nazir Ahmad . The Privy Council while dealing with the statutory right of the police under Sections 154 and 156 of the Code within its province of investigation of a cognizable offence made the following observation:
... so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as Their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court.
6. Mr. Ray invited our attention to the decision in the case of H.N. Rishbud and Anr. v. State of Delhi . In the said case various provisions of the Prevention of Corruption Act were under consideration before the Apex Court. Relying upon the said decision, Mr. Ray contended that it is the duty of the Court to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.
7. Coming back to the present case and scope of the reference, it can be said that any information disclosing cognizable offence may require the police authority to initiate investigation.
8. The Electricity Act, 2003 (hereinafter referred to as 'the Act',) does not seem to contain any provision which stands in the way of police authority in initiating investigation of a case disclosing cognizable offence. But Section 151 of the Act clearly imposes a bar in taking cognizance except in situations as indicated therein. Section 151 of the Code may be set out as follows :
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.
9. Section 151 of the Act does not mention about "police authority' and, as such, the Court cannot take cognizance of an offence punishable under the Electricity Act, 2003 on the basis of a report submitted by it. This perhaps answers to the first query as made by the learned Judge.
10. The second query as made by the learned Special Judge appears to be quite strange in the backdrop of the problem as highlighted in the application seeking reference. It is not a question as to whether police can invoke Section 379 of the Indian Penal Code or not.
11. Learned Judge had himself given reasons as to why Section 135 of the Electricity Act should be taken as a cognizable offence following the Schedule to the Criminal Procedure Code. In this context, it is perhaps necessary to mention that commencement of investigation and power of taking cognizance are two separate and distinct acts and there is no scope for any confusion in this regard.
12. It is necessary to mention that Court of Magistrate is certainly not to be guided by the label of the offence alleged. It is for the learned Court to appreciate the facts as reflected in the complaint or the information in order to determine what offence, if any, is constituted.
13. The Electricity Act, 2003 prohibits the Court from taking cognizance of an offence punishable under the said Act except upon a complaint made by specified authorities. But it does not impose any restriction in the matter of investigation.
14. Mr. Ray in response to our query submitted that police officers have not been authorised by the Government or by the Commission and, as such. Police authority is not competent so as to lodge complaint before a Court in connection with an offence under the Electricity Act, 2003 and even if it does so, the Court cannot take cognizance of such offence in view of the statutory restriction as imposed under Section 151 of the said Act.
15. Accordingly, the reference made under Section 395(2) of the Code of Criminal Procedure stands disposed of.
16. Send a copy of this order to the learned Additional District and Sessions Judge-cum-Judge, Special Court, Tamluk, Purba Midnapore and Registrar (Administration), Appellate Side, High Court, Calcutta, is directed to communicate such order.
Aloke Chakrabarti, J.
17. I agree.