Calcutta High Court (Appellete Side)
Sk. Rahamat Ali vs The State Of West Bengal & Anr on 18 March, 2009
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice S.P. Talukdar
C.R.R. No. 2672 of 2006
SK. Rahamat Ali
Vs.
The State of West Bengal & Anr.
For the Petitioner: Mr.Biplab Mitra,
Mr. Arindam Sen.
For the Licensee: Mr. Jaymallya Bagchi,
Mr. J. N. Chatterjee.
For the State: Mr. A. Auddya.
Judgment on: 18.03.2009
S.P. Talukdar, J.: By filing the present application under Section 482 of
the Code of Criminal Procedure, the petitioner sought for quashing of the Special
Case No.113 (9)/2004 (E) pending before the learned Court of Additional
Sessions Judge - Special Court, Electricity Act, at Alipore. It arises out of Falta
Police Station Case No.150 of 2004 dated 22.09.2004 under Section 135(1) (b) (c)
of the Electricity Act, 2003 read with Section 379 of the Indian Penal Code.
The facts of the case are: -
The petitioner runs a Saw Mill under the name and style of M/S.
Popular Timber Industries, having a valid license granted by the appropriate
authority. He is a consumer of electricity in connection with the said Saw Mill.
He has been using electricity connection from the erstwhile West Bengal State
Electricity Board, the Opposite Party No.2, for Commercial and Industrial
purpose. He duly made payment in respect of all the bills issued by the said O.P.
No.2 towards consumption of electricity and there is no outstanding due. On
22nd September, 2004, the O.P. No.2 issued a notice against the petitioner under
Section 5.2.1 of the West Bengal (Electricity Supply Code), 2004, alleging inter
alia, that on inspection, made by the concerned officer of the O.P. No.2, the
electricity meter of the said Saw Mill, M/S. Popular Timber Industries, being
Meter No. SB 980912 was found to have been tampered with and was being used
for committing theft. Subsequently, on the same day, Falta Police Station Case
No. 150 of 2004 dated 22.09.2004 was registered on the basis of a complaint
lodged by one Mr. Sisir Kumar Bandapadhyay, Assistant Engineer (S & LP), 24-
Parganas, District Circle, West Bengal State Electricity Board, alleging
commission of offence punishable under Section 135 (1) (b) (c) of the Indian Penal
Code.
It was alleged that the officers of the respondents-authority entered into
the premises of the present petitioner situated at Jagannath More, Police Station- Falta and inspected his service connection as well as the Meter being No. SB 980912 of the West Bengal State Electricity Board. On inspection, the State- authority detected theft of electricity, tempering of meter, installation or using of tempered meter as well as other illegal activities. It was also alleged that on inspection, tempering was evident on the both sides of the manufacturer's seals. It was further claimed that due to such dishonest act on the part of the petitioner, there was loss of electricity of 5990 Units/months for at least (6) six months and this amounted to loss of Rs.2, 26,068/-.
The petitioner challenging such illegal act on the part of the respondent- authority filed a writ application being W.P. No.19117 (W) of 2004. Learned Single Judge of this court by order dated 1st December, 2004 directed inter alia, the petitioner to pay 25% of the assessed amount of Rs.2, 26,068/-. There was further direction for payment of reconnection charges as well as the cost of replacement of the meter in question. The authority concerned was directed to restore supply of electricity within 48 hours of such payment. Liberty was given to the petitioner to raise objection before the Assessing Officer who was further directed to consider the same in accordance with law after giving an opportunity of hearing. The petitioner was further given liberty to prefer an appeal in case it remains dissatisfied with the order of the Assessing Authority. Grievances, as ventilated, may briefly be stated as follows: -
Investigating Agency submitted charge sheet in connection with the said criminal case against the present petitioner and one Rajib Sk being charge sheet No.153 of 2004 dated 30.09.2004 under Section135 (1) (b) (c) of the Electricity Act, 2003 read with Section 379 of the Indian Penal Code.
The learned Additional Sessions Judge, Special Court under the Electricity Act, at Alipore by order dated 2nd December, 2004 took cognizance of the alleged offences and issued process against the accused persons.
By order dated 14th July, 2006, the said learned Court framed charge against the accused persons including the present petitioner under Section 135 (1) (1b) of the Electricity Act.
Since Section 151 of the Electricity Act, 2003 does not permit the learned Court to take cognizance on a police report, cognizance taken by the learned Court is bad. The Electricity Act, 2003 prescribed that cognizance of an offence punishable under the said Act can only be taken on the basis of a complaint made by specified authorities.
In view of Section 152 of the Electricity Act, 2003, the offences for which the accused persons had been charged are compoundable and since a sum of Rs.56, 517/- had already been paid in compliance with the direction given by the Hon'ble Court in W.P.No.19117 (W) of 2004, further proceeding with the said criminal case will be an abuse of the process of court.
The petitioner, thus, approached the court with the prayer for quashing of the further proceeding. The case was, however, contested by the respondents, particularly, respondent No.2, West Bengal State Electricity Board.
Mr. Biplab Mitra, as learned Counsel for the petitioner, at the very outset invited attention of the court to the decision in the case of Ajoy Kumar Ghosh vs. The State of West Bengal & Anr., reported in (2007) 2 C Cr LR (Cal) page 463. It was contended that even prior to the amendment, the relevant statute by itself was a complete Code requiring no cure. According to Mr. Mitra, the scheme of things as reflected from the Electricity Act, 2003 was to leave the police authorities, who are non-technical in their approach, out. Mr. Mitra further submitted that the legislature did not choose to go for 'repeal' of the Act but only brought amendment of the relevant provisions. Since an amendment cannot be made to frustrate the order or judgment of the court, Mr. Mitra contended that there could be no reason for holding that such amendment was retrospective in nature.
This seems to be the bone of contention. After careful consideration of the facts and circumstances and having regard to the submission made by learned Counsel for the parties, it seems that the crux of the controversy is whether Section 15 and Section 16 of the Amending Act which came into force on and from 15th June, 2007 can be treated as retrospective.
It was submitted by Mr. Mitra that the Electricity (Amendment) Act, 2003 is a complete Act by itself, which did not require any explanation and/or clarification. Section 128 of the Act of 2003 deals with the matter of investigation. Section 128 gives the power to the Appropriate Commission to direct any person to investigate the affairs of any generating company or licensee and to report to that Commission on any investigation made by such Investigating Authority. According to Mr. Mitra, plain reading of Section 151 of the Electricity Act, 2003 and reasonable appreciation of the scheme as reflected from the said Act would make it abundantly clear that the legislature intended that cognizance of any offence can only be taken on the report of the Appropriate Commission or any other Officer authorized in that regard or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be. Mr. Mitra further submitted that there could be no reason for trying to find out ambiguity in the Act since the language used is simple, clear and categorical. It was then submitted that the police authority was purposely left out. Deriving inspiration from the decision of the Apex Court in the case of The Central Bank of India & Ors. vs. Their Workmen etc reported in AIR 1960 S.C.12, it was submitted by Mr. Mitra that a remedial Act is not necessarily retrospective. It may either be enlarging or restraining and it takes effect prospectively. It was further submitted that so far as the present case is concerned by subsequent amendment new mode of taking of cognizance has been introduced, keeping the earlier mode intact, meaning thereby that there has only been enlargement of the scope.
Before proceeding further, it may be necessary to reproduce Section 151 of the Electricity Act, 2003 prior to its amendment. The same is: -
"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 authorized 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 aforesaid legal position led the learned Additional District & Sessions Judge cum Special Court under the Electricity Act, 2003, Tamluk, Purba Mednipore to make a reference under Section 395 (2) of the Criminal Procedure Code. The issues raised in the said reference are: -
(i) Can the Special Court constituted under Section 153 of the Electricity Act, 2003 take cognizance of an offence punishable under the said Act on the basis of police report submitted under Section 173 of the Criminal Procedure Code?
(ii) Can the police authority invoke provision of Section 379 of the Indian Penal Code along with Section 135 of the Electricity Act, 2003 for registration of case with regard to theft of electricity? The said reference was dealt with by Division Bench of this court (of which I was a member) and was disposed of with the observation that Section 151 of the Act does not mention about "police authority" and as such, the court could not have taken cognizance of an offence punishable under the Electricity Act, 2003 on the basis of a report submitted by it. It was further observed that Electricity Act, 2003 prohibits the court from taking cognizance of an offence punishable under the Special Act except upon a complaint made by specified authorities. But it does not impose any restriction in the matter of investigation.
This naturally gave rise to an unpleasant situation. Having regard to the quantum of punishment as prescribed under Section 135 of the Electricity Act, 2003 and following Schedule II of the Criminal Procedure Code, it could not be said that the offence under Section 135 of the Electricity Act was not cognizable.
And, who could deny the authority of the police to investigate into a cognizable offence?
But, thereafter came the Electricity (Amendment) Act, 2007. Section 15 of the Amendment Act inserted the following provisions: -
"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;
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". Section 16 of the Amendment Act led to introduction of Sections 151-A and 151-B of the Electricity Act. The same are: -
"151-A. For the purpose of investigation of an offence punishable under this Act, the police officer shall have all the powers as provided in Chapter XII of the Code of Criminal Procedure, 1973."
"151-B. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 an offence punishable under Section 135 to 140 or Section 150 shall be cognizable and non-bailable."
The question that has been cropped up in connection with the present application for quashing of the proceeding was raised time and again before the learned Courts. Without referring to the decisions of the various learned Courts right at this stage, it will possibly be necessary to deal with the submission made by learned Counsel for the parties.
According to Mr. Mitra, learned Counsel for the petitioner, the Electricity Act, 2003 was a complete Code which was never sought to be repealed and perhaps did not call for any cure. It was categorically submitted that since the said Act expresses the will of the legislature in no uncertain terms and consciously leave the police authority out, there could be no justification whatsoever to approach the problem with the preconceived notion that the Amendment Act, 2007 sought to cure a defect. If leaving the police authority out was a conscious act of the legislature, how could there be a defect at all requiring to be taken care of.
In course of submission Mr. Mitra referred to the decision of the Apex Court in the case of Shri Prithvi Cotton Mills Ltd & Anrs. vs. Broach Borough Municipality & Anrs., reported in 1969 (2) Supreme Court Cases 283. The Apex Court in the said case held that "the validity of a Validating Law, therefore, depends upon whether the Legislature possesses the competence which it claims over the subject matter and whether in making the validation it removes the defect which the courts had found in the existing law and makes adequate provisions in the Validating Law for a valid imposition of the tax."
Mr. Mitra then referred to the decision of the Apex Court in the case of National Agricultural Cooperative Marketing Federation of India Ltd & Anr. vs. Union of India & Ors., reported in (2003) 5 SCC 23. The Apex Court while dealing with power of the legislature to introduce enactments or to amend enacted law with retrospective effect referred to the limitations thereof and held that such power is not only subject to the question of competence but is also subject to several judicially recognized limitations.
Those limitations are: -
(i) Retrospective operation must be expressly provided or clearly implied,
(ii) Retrospectivity must be reasonable and not excessive or harsh, and
(iii) The power cannot be used to subvert a judicial decision without removing the statutory basis thereof.
The Apex Court observed that there is no fixed formula for expressing the legislative intent of restrospetivity.
In the case of Ujagar Prints vs. Union of India, (1989) 3 SCC 488, page 517, the Apex Court held: -
"A competent legislature can always validate a law which has been declared by courts to be invalid, provided the infirmities and vitiating infractors noticed in the declaratory judgment are removed or cured. Such a validating law can also be made retrospective. If in the light of such validating and curative exercise made by the legislature - granting legislative competence - the earlier judgment becomes irrelevant and unenforceable, that cannot be called an impermissible legislative overruling of the judicial decision. All that the legislature does is to usher in a valid law with retrospective effect in the light of which earlier judgment becomes irrelevant". It is possibly needless to mention that once the circumstances are altered by legislation, it may neutralize the effect of the earlier decision of the court, which becomes ineffective after the change of the law.
While referring to the rules of construction, Mr. Mitra invited attention of the court to the decision in the case of Zile Singh vs. State of Haryana & Ors., reported in (2004) 8 SCC 1.
The Apex Court in the said case held that it is the cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. The rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. The Apex Court further observed that the presumption against retrospective operation is not applicable to curative or declaratory statutes.
The Apex Court in the said case observed: -
"Where a statute is passed for the purpose of supplying an obvious omission in a former statute or to 'explain' a former statute, the subsequent statute has relation back to the time when the prior Act was passed. The rule against retrospectivity is inapplicable to such legislations as are explanatory and declaratory in nature".
On the other hand, Mr. Bagchi, learned Counsel appearing for respondent No.2 started his argument by saying that taking of cognizance is a procedural matter and an accused cannot have any vested right existing in such proceeding. He contended that the nature and scope of the amendment as referred to earlier, would make it amply clear that such amendment relates to manner of taking of cognizance of the offence by the court and the nature of the offence in relation to investigation and other aspects relating thereto. He submitted that all procedural amendments are ordinarily retrospective in nature. In this context, he relied upon the decision of the Apex Court in the case of Gurbachan Singh vs. Satpal Singh reported in AIR 1990 Supreme Court 209.
The Apex Court in the said case referred to Halsbury's Laws of England (Fourth Edition), Volume 44 page 570 which is: -
"The general rule is that all statutes, other than those which are merely declaratory or which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature........."
"The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament."
In the case of Rajendra Kumar vs. Kalyan (DEAD) By LRS., reported in (2000) 8 Supreme Court Cases page 99, the Apex Court held that "in the absence of an express ban to its retrospectivity a statute dealing with matters of procedure is normally retrospective."
It seems to be the settled position that the rule that an Act of Parliament is not to be given retrospective effect applies only to statutes which affect the vested rights; it does not apply to statutes which alter the form of procedure or the admissibility of evidence, or the effect which the courts give to evidence; if the new Act affects matters of procedure only, then, prima facie, it applies to all actions pending as well as future. (See in this context the decisions of the House of Lords in the case of Blyth vs. Blyth (1966) 1 All ER 524, A.G. vs. Vernazza (1960) 3 All ER 97).
Mr. Bagchi, while submitting that clarificatory amendments arising out of conflicting judicial pronouncements must be retrospective in nature relied upon the decision in the case of Commissioner of Income Tax, Bombay & Ors. vs. Podar Cement Pvt. Ltd & Ors., reported in (197) 5 SCC 482.
The Amendment Act came into force with effect from 15th June, 2007. This, by itself, cannot lead to any presumption that it was intended to be prospective in nature. The retrospectivity of a provision of law is not guided by the date of commencement of the statute. The nature and character of the relevant provisions of law are required to be interpreted by the court. Prior to the amendment, the offence under Section 135 of the Electricity Act, 2003, following Schedule II of the Code of Criminal Procedure, was cognizable in nature. If so, police authority certainly did have the power to investigate into such an offence. In course of investigation, it might be necessary to search and to seize materials. These are all inevitable, if not integral part of investigation. But strangely enough, there was a restriction upon the court in taking cognizance on the basis of a police report, which could be based on such arrest, search and seizure. There could be no doubt that this aspect deserved to be considered in a more rational manner. This court finds it difficult to agree with Mr. Mitra, who submitted that the legislature intentionally and consciously wanted to keep the police authority out and as such, there could be no scope for taking cognizance on a police report. I am afraid, this impliedly reflects an effort to read something more than what meets the eyes. If an offence is cognizable, how could one read into it that the intention of the legislature was to keep the police authority out. Having regard to the nature of the amendment, which was brought into effect, it may very well be said that it was done in order to heal up the wounds and fill up the gaps. There was need for taking care of the mischief, which was created rather in an unintentional manner.
Mr. Bagchi quite rightly submitted that to hold that the Amendment Act was prospective would result in absurdity. This would have the effect of shifting the order of taking of cognizance on a police report from a date anterior to the date of amendment of statute to a date of posterior thereto. Since taking of cognizance is purely a procedural aspect and it does not violate any vested or substantive right of an accused, there could be no reason nor any justification for raising doubt as against the retrospectivity.
The Apex Court in the case of American Home Products Corporation vs. MAC Laboratories Pvt. Ltd. & Anr., reported in (1986) 1 SCC 465 held: -
"It is a well known principle of interpretation of statutes that a construction should not be put upon a statutory provision which would lead to manifest absurdity or futility, palpable injustice, or absurd inconvenience or anomaly".
In course of argument the learned Counsel for the parties referred to the judgments delivered by the various learned Benches of this court.
In the case of Ajoy Kumar Ghosh vs. The State of West Bengal & Anr., reported in (2007) 2 C Cr LR (Cal) 463, the Hon'ble Justice Ashim Kumar Roy, held that "by this amendment the obvious error has been explained, and removed. It clarifies what law always was and shall remain to be. No vested right has been taken away or curtailed. The amendment in question is not only procedural in nature but at the same time is curative and declaratory."
In an unreported decision of learned Single Judge of this court in the case of Prantosh Das vs. The State of West Bengal, being the C.R.R. No.1224 of 2004 the learned Single Bench held that such amendment being purely procedural shall have retrospective effect covering all pending and further actions.
An identical approach was taken in many other matters. Having regard to the fact that the learned Courts virtually echoed the same proposition of law regarding retrospectivity of the amendment under reference, I do not think it necessary to deal with all those cases in any further details.
It follows from the aforesaid discussion that the issue raised on behalf of the petitioner that cognizance having taken on the basis of a police report prior to the date of the Amending Act, 2007 coming into effect, the same is bad in law, does not seem to have any rational basis.
Accordingly, the present application being C.R.R. No.2672 of 2006 fails and be dismissed.
Interim order, if any, stands vacated.
No order as to costs.
Learned Trial Court is hereby directed to proceed with the case under reference as expeditiously as possible.
Send a copy of this judgment to the learned Trial Court for information and necessary action.
Criminal Department is directed to supply urgent certified copy of this judgment as expeditiously as possible.
(S.P. Talukdar, J.)