Karnataka High Court
B C Suresh vs The State Of Karnataka on 1 March, 2012
Equivalent citations: 2013 (2) AKR 826
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated 1st day of March 2012
Before
Hon'ble MrJustice JAWAD R.AHIM
CRIMINAL APPEAL No.1/2010
BETWEEN:
B.C. S u res h,
S/c. Late Chikkasiddaiah,
50 years, Agriculturist,
Halebudanoor,
Kasaba Hobli,
Mandya Taluk.
..APPELLANT
(By Sri S.G.Bhagavan - Advocate)
AND:
The State of Karnataka
By KPTCL (Vigilance),
Mysore.
RESPONDENT
(By Sri Raja Subramanya Bhat -- HCGP)
Criminal Appeal is filed under Section 156 of Indian
Electricity Act, 2003 against the judgment dated 14-12-2009
passed by the Addl.Sessions Judge, Mandya, in Spl.C
(Elect). No.18/2005.
This Crl.A coming on for hearing before the Court this day,
the Court delivered the following: -
9
JUDGMENT
Convicted accused no.1 is In appeal against his conviction for the offences punishable under SectIons 135 and 138 of The Electricity Act, 2003, (hereinafter referred to as the Act, for brevity) and consequent sentence imposed.
2. Heard learned counsel for the appellant, Mr.S.G.Bhagavan and learned HCGP, Mr.Raja Subrahmanya Bhat. Perused records In supplementation thereto which reveals:
a) M.K.Guruswamy (CW1) ranked as Section Officer in Keelara Sub-division of MESCOM along with Karigowda, Lineman attached to the same sub-division and Sathyanarayana Sharma (CW8) working as Head Constable In Vigilance Cell of MESCOM, Mandya, formed a team and visited Heieboodanur village on 27.10.2004 on the suspidon that the appellant herein (B.C.Suresh) who had installed and was running a sugarcane crushing unit, had illegally tapped electrical energy from the main pole of MECSOM, which, if proved, would be an offence punishable under SectIons 135 and 138 of the Act.
S 3
b) On inspecting the unit, their suspidon translated into belief that he had committed the offences punishable under Sections 135 and 138 of the Act and thus a written complaint was submitted by M.K.Guruswamy to CW8
-
Sathyanarayana Sharma, Head Constable of Vigilance Cell of MESCOM. He in turn registered it In Crime No.23/04 and forwarded FIR to the desIgnated Special Judge, Mandya, on 16.12.2004 and embarked upon investigation.
c) During investigation, he daims to have collected material Indicting B.C.Suresh (appellant herein) and one Sumitramma 2 ( I d accused) for the said offences. Learning of such prosecution against them, they surrendered befo re the designated court and obtained bali on 3.2.2005. Afte r completion of investigation, the police officer flied final report on 15.6.2005 resulting in re-registration of Crim e No.23/04 as Spedai Case No.18/OS on the file of the Sped ai Judge under the Act. However, the learned Special Judg e (Prlndpai District Judge, Mandya) after framing charges, assigned the case to the Additional Sessions Judge, Man dya, 4 before whom the appellant and Sumitramma were put to trial.
d) In the trial that ensued before the Additional Sessions Judge, Mandya, prosecution examined seven witnesses and placed reliance on 4 documents, while the 1 accused tendered evidence as DW1 and examined two witnesses, viz., DW2-Dinesha and DW3-Savithramma.
e) The learned trial judge, analyzing the evidence so brought on record, opined prosecution evidence outweighs the defence of the 5 1t accused and convicted him, while the evidence did not convincingly establish the guilt of 2 nd accused-Sumitramma. In the resultant position, 5 1t accused was convicted and sentenced to pay a fine of Rs.2,70,000/- in default to undergo simple Imprisonment for 6 months for the offence punishable under Section 135 of the Act, and also to pay a fine of Rs.5,000/- for the offence punishable under Section 138 of the Act, In default to undergo simple imprisonment for one month.
5
Q Assailing l accused is In appe
al.
3. WIth his persuasive eloquence, learned senior
counsel, Sri S.G.Bhagavan while referring to the evidence on record to contend such evidence does not even remotely establish the charge to inculpate the appellant, has laid strong emphasis on the irregularities In the proceedings right from the inception of Investigation till pronouncemen t of judgment by the trial judge. His core contentions are:
I) Learned Additional Sessions Judge had no jurisdiction to subject the appellant-accused to trial as it was not the 'Special Court' constituted under Section 153 of the Act;
Ii) Even assuming learned trial judge was designated as such, the proceedings are vitiated and there is no material on record to show that he had taken 'cognizance' in terms of the provisions of the Act;
iii) CW1-M.K.Guruswamy-compialnant on whose report FIR was registered had no competence to submit the complaint for taking cognizance;
iv) CW8-Sathyanrayana Sharma who had submitted the final report on the basis of which the appellant was put to trial had no competence to investigate and submit report under SectIon 173, Cr.P.C. in view of
6.• the statutory bar created by Section 151 of the Acta and
v) The 'Special Court' constituted in terms of Section 153 of the Act is not the court of first Instance to take cognizance directly for any of the offences punishable under the Act unless the case is committal by the jurisdictional magistrate.
4. Mr. Raja Subrahmanya Bhat, responding to these contentious issues, though does not dispute the legal position, but on facts he tried to bring out the distinction. In view of such stand by the State, necessarily Sections 151, 153 and 154 of the Act need consideration. The provision reads thus:
Sec. 151: No Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by the Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Eiectricai 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 flied under Section 173 of the Code of Criminal Procedure, 1973;
--F 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.] Provisos inserted with effect from 15.6.2007 by Act No.26/07) Section 151 deals with taking of cognizance of an offence punishable under the Act and postulates in unmistakable terms that 'no court shall take cognizance of an offence punishable under this Act except upon a complaint in writing 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 licensee or the generating company, as the case may be, for this purpose' The first part creates a clear bar on courts from taking cognizance except upon a 'complaint' in writing by the authorities and the category of persons referred to therein which excludes report of the police officer.
5. What is a 'complaint' is defined in Section 2(d) of the CrP,C. which reads thus:
'complaint' means any allegation made orally or In writing to a magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not indude a police report.' and excludes a police report (undoubtedly submitted under Section 173, Cr.P.C.). Therefore, the first requirement is, there shouid be a 'complaint in writing' and secondly, it could be only by the 'Appropriate Government, Appropriate Commission or any officer authorized by them, or the Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be.'
6. Certain provisions induding Section 151 of the Eiectridty Act, 2003, are amended by (Act 26 of 2007) with effect from 15.6.2007. By such amendment, two provisos are inserted which read thus:
[Provided that the Court may also take cognizance of an offence punishable under this Act upon a report of a police officer flied 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 3. 4. without the accused being committed to it for trial) By virtue of the two provisos so Inserted, an exception is provided to the bar created by SectIon 151, thereby permitting the courts also to take cognizance of the offences punishable under this Act even upon report of the police officer flied under Section 173, Cr.P.C., which was otherwise not permissible in the original provision. Simiiarly, by the second proviso, the 'Special Court' constituted under Section 153 of the Act is conferred with jurisdiction to take cognizance of the offences punishable under this Act without the accused being committed to It.
7. It is material to note by virtue of the first proviso, cognizance could be taken on a report flied under Section 173, Cr.P.C. and by the second proviso, the 'Special Court' Is permitted to take cognizance without the order of committai by the magistrate under Section 209, Cr.P.C. Substantive iaw like Section 151 of the Act has remained unchanged. Consequently if a complaint is submitted to the court for takIng cognizance, then it has to be only by:
Wi' H)
(a) Appropriate Government, or (b) Appropriate Commission or any other officer authorized by them, or (c) Chief Eiectricai Inspector or Electrical Engineer, or Cd) a iicencee or Ce) the generating company, as the case may be. Therefore, the 'Spedai Court' wiii be required to examine whether the compiaint is submitted by the Appropriate Government, or (b) Appropriate Commssion or any other officer authorized by them, or Cc) Chief Eiectricai Inspector or Eiectrical Engineer, or (d) a iicencee or (e) the generating company, as the case may be or not. In this regard it is incumbent on the compiainant if he is an officer, to produce and prove such authorization. The 'Speciai Court' cannot ignore this mandate to take cognizance merely on his statement in the compiaint or ihs oral assertion regarding authorization. The written authorization must accompany the complaint to substantiate he is so authorized. In case the report is flied by the police officer under Section 173, Cr.P.C., then by virtue of the proviso inserted in Section 151 of the Act, the 'Special Court' wiii be competent to take cognizance without ti! insisting on the complainant to produce authorization as referred to in the proviso.
8. In the drcumstances, the relevant factors would be to examine when the alleged crime was committed and when the court has taken cognizance. If the offence is alleged to have been committed prior to 15.6.2007, the date on which the relevant proviso was inserted, it will not be competent for the court to take cognizance on the basis of poiice officer's report submitted under Section 173, Cr.P.C. in view of the bar created by the substantive provision under Section 151 of the Act. However, if the offence Is committed after 15.6.2007, such police report could be the basis for taking cognizance.
9. Applying the legal position which emanates from the provisions referred to above, I have examined the factual matrix of this case.
10. It Is not in dispute CW1-M.K.Guruswamy, working as Section Officer in MESCOM, has submitted the complaint on 16.12.2004 not to the court for taking cognizance but to CW8-Sathyanarayana Sharma, Head Constable In the Vigilance Cell of MESCOM at Mandya. Since the complaint is submitted on 16.12.2004 which is prior to 15.6.2007, CW8- Sathyanarayana Sharma had no legal competence to receive such complaint to treat it as report under Section 154 of the Code of Criminal Procedure embark upon investigation, neither did he have competence to submit final report under Section 173, Cr.P.C. to the court, as he has done on 15.6.2005. This Is because as on the date of submission of final report, i.e. 15.6.2005 Section 151 of the Act stood without provisos (1)and (2) and they were inserted on 15.6.2007.
11. Sri Raja Subrahmanya Bhat would submit, though CW1-M.K.Guruswamy was working as Section Officer, he had been authorized by the State Government to file a complaint, and refers to the notification dated 8.1.2004 issued by the Government under Section 151 of the Act which reads thus:
'All Engineers working In 0 & M, namely, Su perintending Engineers, Executive EngIneers, Assistant Executive Engineers, £3 Assistant Engineers, Junior Engineers and Assistant Executive Engineers of Vigilance Police Stations are hereby authorised to file complaints and also to institute prosecutions at the jurisdictional police stations and to Vigilance Police Station established at MESCOM, when offences committed or are believed to have been reasonably committed under Sections 135 to ;153 of the Electricity Act, 2002.'
12. The records of the proceedings in this case reveal before the designated 'Special Court', no complaint was submitted by CW1-Guruswamy or any officer named in the notification dated 8.1.2004. The first day of the order sheet of the Special Judge, Mandya, reads thus:
"16-12-2004: SHO, MESCOM (V), Mandya, has submitted FIR & complaint along with P.F.No.23/04 & connected mahazar in Cr. 23/04 of his police station against the accused person for the offences p/u/s 135 & 138 of I.E.Act 2003 on 27-10-04.
Mr.B.K.S, Advocate, filed an application for the surrender of the accused before this Court. Application under Section.439 of Cr.P.C for the regular bail along with power for the accused also filed. A Memo Is filed with c.c of order dated 17- 11-04 in C.Misc.389/04 is furnished.
For orders:
aS> 34 Perused the application and P.P. orally opposes the application. This Court already granted anticipatory bail in favour of the accused. By taking the allegations and the gravity of the offence, the accused is entitled to regular ball. Hence, the accused is enlarged on bail subject to executing Bond for Rs.20,000/- with one surety. Surety by name C.C.Chandrasekhar, 5/0. Chennanke Gowda, offers surety by producing ..RTC extract. Surety is accepted. Take Bond. Await report by 3-2-2005."
Therefore, the proceedings Initiated against the appellant in the manner aforesaid Is wholly untenable and are vitia ted for contravention of the provisions of Section 151 of the Act.
13. The second point that arises for consideration is:
Whether even the Special Judge had competence to take cognizance of the offence punishable under the Act without committal order of the magistra te committing the accused to stand trial before it?
Section 151 of the Act as it stood prior to 15.6.2007 did not permit the 'Special Court' to take cognizance of the offen ce without the accused being committed to it for trial. This opinion is fortified and becomes dear as for the first time the second proviso is Inserted to Section 151 authorizi ng I6 the 'Special Court' constituted under Section 153 of the Act to be competent to take cognizance of the offences without the accused being committed to it for trial. The proviso reads thus:
'Provided further that the special court constituted under Section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.' Prior to the insertion of such proviso, there was no such authorization. Compiaint had to be submitted to the magistrate who would take cognizance subject to the conditions provided in Section 151 and then commit the case to the 'Special Court' for trial.
14. In the instant case, final report is flied on 15.6.2005 directly before the 'Special Court' who has summoned the accused without passing the order of taking cognizance to which I have aiready referred to above. It is only after insertion of the second proviso to Section 151 the 'Special Court' constituted under Section 153 is conferred with jurisdiction to take cognizance of the offences punishable under the Act without the accused being committed to it for trial. Thus the second point is answered accordingly.
15. The third point for consideration is: Whether the Additional Sessions Judge who has passed the impugned judgment convicting the appellant had jurisdiction to try him for the offences punishable under the provisions of the Electricity Act? In this regard, necessarily reference has to be made to Section 153 which provides for constitution of a 'Special Court'. It reads thus:
153w Constitution of Special Courts - (1) The State Government may, for the purposes of providing speedy trial of offences referred to in (sections 135 to 140 and section 150), by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such are or areas, as may be specified in the in the notification.
(2) A Special Court shall consist of a single Judge who shall be appointed by the State Government with the concurrence of the High Court.
(3) A person shall not be qualified for appointment as a Judge of a Special Court unless he was, immediately before such I+ appointment, an Additional District and Sessions Judge.
(4) Where the office of the Judge of a Special Court is vacant, or such Judge is absent from the ordinary place of sitting of such Special Court, or he is incapacitated by illness or otherwise for the performance of his duties, any urgent business in the Special Court shall be disposed of --
(a) by a Judge, if any, exercising jurisdiction in the Special Court;
(b) Where there is not such other Judge available, in accordance with the direction of District and Sessions Judge having jurisdiction over the ordinary place of sitting of Special Court, as notified under subsection (1).
Section 154 makes it further clear that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under Sections 135 to 140 and 150 (as amended by Act No.26/07) with effect from 15.6.2007) shall be triable only by the 'Special Court' within whose jurisdiction such offence has been committed.'
16. The Additional Sessions Judge, Mandya, who has subjected the appellant to trial was not presiding over the 'Special Court' constituted under Section 153 of the Act since it is only the Principal District Judge, Mandya, who was constituted as 'Special Court' by virtue of the Government notification. Therefore, the impugned judgment is also not sustainable as the Additional Sessions Judge, Mandya, had no legal competence in view of the bar under Section 154 of the Act.
17. In the result, the appellant succeeds in his legal pursuit and on the basis of what is discussed above, I am persuaded to accept all the grounds mi the appeal, viz., (1) trial of the accused is vitiated as it has been initiated on the basis of report submitted by the officer who was not competent to file the complaint; (2) the 'Special Court' could not have taken cognizance or subjected the appellant to trial in the absence of committal order passed by the magistrate committing the accused to stand trial; and (3) initiation of prosecution itself is vitiated as it is based on the report of the police officer and not on the complaint in 4 writing submitted to the court In the manner provided in Section 151 of the Act; and (4) the Additional Sessions Judge, Mandya to whom the case was transferred nad who had tiled the appellant had no legal competence to take cognizance or subject him to trial for the offences punishable under the Act.
18. Consequently the appeal Is allowed. Prosecution of the appellant is dedared as illegal and vitiated for contravention of the mandatory provisions of Sections 151 and 154 of the Electrldty Act ,and consequently hIs convIctIon for the offences punishable under SectIons 135 and 138 of the ElectrIcIty Act, and the sentence imposed is set aside. Appellant-accused Is acquitted.
Sd/ JUDGE Mp/vgh*