Calcutta High Court (Appellete Side)
Allauddin Ansary & Anr vs State Of West Bengal on 31 August, 2015
Author: Tapash Mookherjee
Bench: Tapash Mookherjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
P R E S E N T:-
The Hon'ble Justice Tapash Mookherjee
C.R.A. No.196 of 2006
Allauddin Ansary & Anr
Versus
State of West Bengal
For the Appellants :- Mr. Milan Mukherjee, Advocate,
Mr. Abhra Mukherjee, Advocate,
Ms. Anita Kundu,
For the State :- Mr. Manjit Singh, ld. P.P.
Mr. Partha Pratim Das, Advocate.
Heard on : 29.04.15, 05.05.15, 08.05.15, 03.06.15 and 08.06.15
Delivered on: 31.08.2015
Tapash Mookherjee, J:
1.The present appeal is directed against the judgment and order of conviction and sentence dated 08.03.2006 passed by the learned Additional Sessions Judge, Second Court, Purulia (Special Court under the Electricity Act), in Electric G.R. Case No. 128/2004. By the aforesaid judgment, the Trial Court has found both the appellants guilty of the offence punishable under Section 135 of the Indian Electricity Act and sentenced both the appellants to suffer Rigorous Imprisonment for two years and to pay fine of Rs. 2,000.00 (rupees two thousand only) each with default clause.
2. The facts leading to the appeal in short, are as follows:-
3. The appellant Alauddin Ansary is the owner of a premises at village Rangamatia under P.S. Para, District Purulia in which there is an industrial connection bearing consumer No. I 51005. In the afternoon of 17.12.2004 the said industrial connection was inspected by some officers of West Bengal State Electricity Board and during such inspection it was found that a motor in the premises was in running condition and on further inspection it was found that the cut out of the yellow phase of the connection was open and the third phase was connected with the incoming connection in the domestic line in an adjacent premises owned and possessed by the other appellant Dhirajuddin Ansary. It was thus detected that the appellant Allauddin Ansary was consuming electricity at his premises illegally causing thereby loss of revenue to the West Bengal State Electricity Board. The police officer accompanying the said raiding team, therefore, seized a main switch with its connecting wires and other implicating articles as well. Subsequently, Sri Kalyan Mallik, Assistant Engineer, Adra (O + M), S/D who was in the raiding team submitted a written complaint along with a written inspection report before the Officer-in-charge, Para Police Station, District Purulia on the basis of which Para P.S. Case No. 43 of 2004, dated 17.12.2004 under Section 135 of the Electricity Act, 2003 and under Sections 379/120 B/34 I.P.C. was started against both the appellants and after completion of investigation charge-sheet under Section 135 of the Electricity Act 2003 and also under Sections 379/120 B/34 I.P.C. was submitted against both the appellants. The case was forwarded to the Court of learned Additional Sessions Judge, Second Court, Purulia which was a Special Court under the Electricity Act, where a charge under Section 135 of the Indian Electricity Act was only framed against both the appellants. The appellants denied the charge and pleaded their innocence.
4. Prosecution examined five witnesses in total and proved some documents as well. Defence tendered no evidence whatsoever. Considering the evidence thus produced on record the Trial Court found both the appellants guilty of the offence under Section 135 of the Electricity Act, 2003 and passed sentenced mentioned earlier and hence the appeal.
5. The first contention of Mr. Mukherjee was against the maintainability of the case as a whole. He strenuously argued that prior to the amendment of the Electricity Act, 2003 which came into force with effect from 15.06.2007, taking cognizance by the Court on the basis of the police report under Section 173 Cr. P.C. was barred under Section 151 of the Electricity Act, 2003, and according to the provision of Section 151 of the Electricity Act, 2003, before the amendment in the year 2007, the Court was empowered to take cognizance of any offence under the Electricity Act, only on the basis of a written complaint by some authorities specified in the aforesaid Section and a police officer submitting report after investigation, under Section 173 of the Criminal Procedure Code was not included in those list of authorities competent to file a complaint for any offence under the Electricity Act, 2003. Mr. Mukherjee further submitted that the trial of this case was concluded and the judgment was passed on 08.03.2006, i.e., long before the amendment of Section 151 of the Electricity Act in the year 2007 and as such the aforesaid amendment has no application in this case. So, the entire proceeding of the case which was against the provision of Section 151 of the Electricity Act prior to the amendment, stood bad in law. Hence Trial Court committed error in law by finding the appellants guilty of the offence under Section 135 of the Electricity Act.
6. In reply to the aforesaid contention of Mr. Mukherjee, Mr Manjit, Singh learned Public Prosecutor submitted that even prior to the amendment of the provision of Section 151 of the Electricity Act 2003, the Court had the power to take cognizance of any offence under the Electricity Act, 2003, on the basis of any police report submitted under Section 173 of the Criminal Procedure Code. He further argued that the amendment in the year 2007 had not introduced any new provision and the amendment in the year 2007, was purely clarificatory and declaratory in nature and as such it had the retrospective effect. His further argument was that an appeal is a continuation of the trial and hence the amendment of the Section 151 of the Electricity Act, 2003, is well applicable in the present case also, even though the trial of the present case was concluded prior to the introduction of the aforesaid amendment.
7. Interestingly, learned Advocates on both sides relied upon the decision of the Hon'ble Supreme Court in Vishal Agrawal and Anr. - v- Chhattisgarh State Electricity Board and Anr., reported in AIR 2014 Supreme Court 1539 and the decisions in Ashish Kumar Jain - v- State of Jharkhand and Anr., reported in 2010 CRI.L.J 271 and also the decision in Abhay Tyagi- v- State (in city of Delhi) and Anr. reported in 2009 (159) DLT 408.
8. The provision of Section 151 of the Electricity Act, 2003 prior to the amendment in the year 2007 was as follows:-
9. "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 commissioner or any of other 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."
10. A debate arose whether cognizance of any offence under the Electricity Act 2003 could be taken on the basis of any police report under Section 173 of the Criminal Procedure Code and there were conflicting decisions of different High Courts on the point. However, the conflict was resolved by the amendment of Section 151 of the Electricity Act, 2003 which came into force with effect from 15.06.2007. By the said amendment a Proviso is added to the Section 151 which says "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". So, after such amendment the law is now clear that cognizance for any offence under the Electricity Act, 2003 can be taken by the Court on the basis of a police report also, submitted under Section 173 of the Code of Criminal Procedure.
11. In the Vishal Agarwal's case Hon'ble Apex Court discussed the original provision as well as the amendment and its effect as well, and the Hon'ble Apex Court concluded its judgment by saying that the principle laid down in Abahay Tagi - v- State (in City of Delhi) and another and Ashis Kumar Jain- v- State of Jharkhand, laid down the correct position of law on the point. Both those two cases related to the question of quashing the proceedings and in both those cases it was held that even prior to the amendment in the year 2007, police had the authority to investigate any case initiated for any offence under the Electricity Act, 2003. So, the decision of any of those two cases is of no help for the decision in the present case which is not for quashing of the proceeding or challenging the power of the police to investigate the case.
12. It should be noted here that Rule 12 of the Electricity Rules, 2005 has no application in the present case as the said Rule was notified on 08.06.2005, i.e., long after the submission of charge-sheet in the present case.
13. It is a settled principle that nobody has any vested interest in procedural law. So, amendment of any procedural law has generally the retrospective effect. The amendment of the year 2007 of the Section 151 of the Electricity Act, 2003, is an amendment of procedure. That apart, the amendment being explanatory and curative in nature has definitely the retrospective effect. Mr. Mukherjkee did not also oppose the view. But retrospective effect means applicable in pending cases. The position of the present case is different. Because, the trial of the present case was concluded long before the amendment came into force as mentioned earlier. Mr Singh argued that appeal is the continuation of the trial. The amendment of Section 151 of the Electricity Act, 2003 came into force during the pendency of this appeal and as such the amendment is applicable in the present case also. He cited the following decisions to support his view. Dhirubhai Madaribhai - v- State of Gujarat and Anr., reported in 1996 (3) G C D 544, Biswanath Chakravrty - v- Haripada De Dhara and others, reported in 1959 Cri L J 831 and Smt. Kalawati and another - v- State of H.P., reported in 1953 Cri L J 668. In the case of Dhirubhai Madaribhai the question involved was the effect of acquittal in the appeal and from what stage an order of acquittal in appeal does take effect to. In the case of Bishwanath Chakraborty the question was whether an appeal Court had the power to allow composition of the compoundable offences. And in Kalawati's case the point was not an issue at all. There is just an one line remark only in para 9 of the judgment which has been referred to by Mr. Singh.
14. In all those cases the principle that appeal is the continuation of trial was considered in the context of the specific facts in those cases. But in none of those cases it has been laid down that the principle is applicable absolutely and for all purposes. In my view, the principle is applicable for limited purposes otherwise an uncertainty may prevail in the system of the administration of Criminal justice, especially where the law is changed after a case is decided in trial.
15. In the record of the Trial Court it is not mentioned on the basis of which cognizance in the case has been taken. However, it appears by implication that the cognizance was taken on the basis of the police report submitted under Section 173 of the Code of Criminal Procedure. Be that as it may, the trial of this case was concluded on 08.03.2006, i. e., long after the amendment in question. So, in my opinion the amended provision of Section 151 of the Electricity Act, 2003 is not applicable in the present case. The fact being so, the entire proceeding of the present case stands vitiated because of the fact that the cognizance of the case was taken on the basis of a police report under Section 173 of the Code of Criminal Procedure.
16. The nest point agitated by Mr Mukherjee is against the charge framed by the Trial Court in the case. According to Mr Mukherjee the language of the charge read over and explained to the appellants do not carry any clear meaning of the allegations of the prosecution against the appellants and according to him the defect itself is fatal for the prosecution. Mr Singh's view on the point was that the defect, if any, in the charge in the case, is curable and it has not caused any prejudice to the appellants.
17. The main object of framing of the charge in a case is to make the accused aware of the allegations of the prosecution to be faced by him in trial. The charge framed by the Trial Court in this case is reproduced here below. ''That on 17.12.2004 at Rangamatia in your residence dishonestly consuming electric energy by-passing yellow phase by way of illegal tapping from incoming source''.
18. The gist of the prosecution's allegation raised during the trial was that the appellant Allauddin removed the cut-out of the yellow phase in the industrial connection in his premises and took the connection of the yellow phase direct from the incoming connection in the domestic line in the house of the appellant Dhirajuddin which is adjacent to the house of the appellant Allauddin. So, it was not the allegation of the prosecution that the appellant Dhirajuddin consumed electricity in his house illegally. Mr Singh argued that although the appellant Dhirajuddin had not consumed electricity illegally but by allowing to take connection from his line, the appellant Dhirajuddin abetted the commission of the offence by Allauddin. But no such allegation is there in the charge. In fact, any specific role of any of the appellants in the commission of the offence alleged has not been clearly mentioned in the charge. It cannot be ascertained reading the charge as to what was the exact allegation against any of the appellants. The manner of the commission of offence mentioned in the charge does not also match with the facts alleged by the prosecution during evidence. I have, therefore, no hesitation to hold that there is serious defect in the charge framed against the appellants. Such defect is not mere formal or curable and in fact the appellants have been seriously prejudiced by such defects in the charge mentioned above.
19. The Trial Court has convicted the appellant Dhirajuddin Ansary on the basis of the finding that the appellant Dhirajuddin was found consuming electricity illegally. It was never the case of the prosecution, at all, that the appellant Dhirajuddin was found consuming electricity by any illegal means. On the contrary P.W.- 1 clearly admitted in his cross examination that the appellant Dhirajuddin had his own separate house and he consumed electricity from his own meter. In the F.I.R., i.e., Exhibit- 3 there is no specific allegation against the appellant Dhirajuddin to the effect that he had been consuming electricity illegally. In fact, from the F.I.R. it does not appear that his house was inspected by the team visiting the house of the appellant Allauddin. So, the decision of the Trial Court finding the accused Dhirajuddin guilty of the offence under Section 135 of the Indiana Electricity Act, 2003, is devoid of any basis.
20. The allegation against the appellant Allauddin as raised by the principal witnesses during trial appears to be that he had been consuming electricity illegally by connecting a phase in a motor in his house from incoming line in the house of the appellant Dhirajuddin. But the evidence of the principle witnesses P.W,- 1 to P.W.-3 on the point are conflicting and contradicting. At the very outset, it should be noted that none of those witnessed during their evidence stated that they found any such connection in the motor in the house of the appellant Allauddin. All the aforesaid witnesses stated that they found a motor in the house of the Allauddin in running condition.
21. P.W.-1 in his examination-in-chief stated that the appellant Allauddin had been running the motor in his premises in two phases and the third phase being cut-off and the third phase was from the house of the appellant Dhirajuddin. P.W.-3 during his cross examination stated that three phases lines are required to run a motor. But P.W.-2 during his cross examination stated that they found the meter in the house of Allauddin was moving slowly because the electricity was being consumed through two phases only. But immediately after saying so he stated that they found three phases in the meter. Because of such contradictions a cloud is cast on the prosecution's allegation.
22. P.W.- 1 stated that the police officer accompanying them seized all the incriminating materials and he signed on the seizure list. P.W.- 2 also stated that the wire illegally connected had been seized. But none of the seized articles was produced before the Trial Court to prove the alleged seizure and to probablise the alleged illegal connection. So, the allegation against the appellant Allauddin is not also proved beyond all doubts.
23. So, from what has been discussed and decided above it is clear that the judgment and the order of conviction passed by the Trial Court is not sustainable in law. The appeal is, therefore, allowed. Both the appellants are found not guilty of the charge under Section 135 of the Electricity Act, 2003, and they are accordingly acquitted. Bail bond furnished by them stand discharged.
24. Return the L.C.R. along with a copy of this judgment to the Trial Court.
25. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.
(Tapash Mookherjee. J)