Delhi High Court
Abhay Tyagi vs State Nct Of Delhi & Anr. on 24 March, 2009
Author: Sanjiv Khanna
Bench: Chief Justice, Sanjiv Khanna
21.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 4371/2005
Date of decision: 24th March, 2009
ABHAY TYAGI ..... Petitioner
Through Mr. Fanish K. Jain, Advocate.
versus
STATE NCT OF DELHI & ANR. ..... Respondents
Through Mr. Sandeep Sethi, Sr. Advocate with
Mr. Anupam Verma, Mr. Mayank Mishra & Mr.
Divyam Agarwal, Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be allowed to see the
judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in the Digest ? Yes
AJIT PRAKASH SHAH, CHIEF JUSTICE (ORAL)
M.C. Garg, J. has referred this petition for consideration by a larger
Bench on the following points:
i) Whether the Electricity Rules, 2005 are applicable in a case where
the raid was conducted prior to the coming into force of the said
Rules.
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ii) Whether the DERC Regulations were still applicable against the
petitioner in the given facts of this case. More so, when they are
inconsistent with the provisions of the New Act, i.e., Electricity
Act, 2003 and further the provisions contained in the New Act
lays down procedure different than the old procedure which even
call for issuing of a show cause notice before determining as to
whether the petitioner was guilty of committing theft.
iii) In the circumstances is it possible for a Special Judge to take
cognizance of the offence based upon a police report in such a
matter despite the power contained under Section 151 of the
Cr.P.C.
2. The petition has been filed under Section 482 of the Cr.P.C., for
quashing the FIR No.235/2004 registered at P.S. Seema Puri, at the
instance of the 2nd respondent-BSES Yamuna Power Limited on the
allegation that on an inspection conducted at the premises of the
petitioner it was found that the petitioner had indulged in the theft of
electricity and, therefore, he was liable to be punished under Section 39 of
the Indian Electricity Act, 1910 (now, Section 135 of the Electricity Act
2003) read with Section 379 of the Indian Penal Code. The inspection was
carried on 21st April, 2004 and the complaint was lodged with the police on
13th June, 2004, which has resulted in registration of an FIR. The
estimated loss of energy due to the theft of electricity detected during the
inspection has been assessed at Rs.1,46,39,030/-. The submission of the
petitioner is that after the enactment of the Electricity Act, 2003
(„Electricity Act‟ for short) which repealed the Indian Electricity Act, 1910
as well as Delhi Electricity Reforms Act, 2000, no power was left with the
2nd respondent to file a complaint before the police or to get a FIR
(Crl.M.C. 4371/2005) Page 2 of 24
registered with respect to the allegations made by the 2nd respondent in
the complaint, as no cognizance could have been taken of the alleged
offences specified under Section 135 to 138, which are pari materia to
Section 39 of the Indian Electricity Act, 1910, except upon a complaint
filed by an authorized officer before the Special Court in view of Section
151 of the Electricity Act. Opposing the petition the 2 nd respondent relied
upon a judgment of A.K.Sikri J in Bimla Gupta Vs. NDPL, reported in
136 (2007) DLT 521, wherein it has been held that there is no provision in
the Electricity Act, 2003 to suggest that cases of theft of electricity cannot
originate from an FIR. The learned single Judge, however, observed that
in Bimla Gupta's case(supra), the Court has relied upon the judgment of
this Court in Sohan Lal Vs. North Delhi Power Limited & Ors.,
reported in 113 (2004) DLT 547 rendered by Sanjay Kishan Kaul, J., which
view has been differed by another single Judge S. Ravindra Bhat, J. in Raj
Kumar Vs. BSES Yamuna Power Limited, W.P. (C) No. 18912/2006
decided on 18th December, 2006. Further in Bimla Gupta's case(supra),
reference was made to the Electricity Rules, 2005 which had not come into
force when the FIR in the present case was registered and, therefore, the
learned single Judge opined that the correctness of the judgment delivered
in Bimla Gupta's case is required to be examined by a larger Bench.
3. Learned counsel appearing for the petitioner submitted that the
Electricity Act, 2003 is a complete code and proceedings are to be filed
(Crl.M.C. 4371/2005) Page 3 of 24
only under this Act alone. Section 151 of the Electricity Act completely
bars initiation of the proceedings in any other manner, except in the
manner that has been provided under the said Act. This provision
provides that no court shall take cognizance of an offence punishable
under this Act except upon a complaint, whereas in the instant case
instead of filing a complaint, FIR was lodged invoking the provisions of
Cr.P.C., which is not permissible. Learned counsel further submitted that
Section 154 of the Electricity Act also prescribes the manner and mode in
which the action will be taken upon the complaint and it starts with non-
obstante clause meaning thereby the procedure as applicable in other
criminal cases under the Cr. P.C. is barred. He argued that under Section
151 of the Electricity Act, power of police to investigate a case has been
taken away and, therefore, no FIR could be lodged, more so when the
legislature in its wisdom has laid down specific procedure in the said Act
and only that procedure has to be followed and no other mode is
prescribed in the law. The counsel also submitted that the DERC
(Performance standards, Metering & Billing) Regulations, 2002 (DERC
Regulations, for short) which enabled lodging of a report with the local
police stood repealed in view of Section 185(3) of the Electricity Act of
2003. He submitted that S. Ravindra Bhat, J. in his referring order in Raj
Kumar's case (supra) has raised doubt about the correctness of the
decision in Sohan Lal's case(supra) wherein it has been held that the
(Crl.M.C. 4371/2005) Page 4 of 24
DERC Regulations have been saved by Section 185 of the Electricity Act.
Lastly, the learned counsel contended that in Bimla Gupta's case(supra)
the Court was concerned with the Electricity Rules, 2005 which were not in
force at the relevant time when the FIR was registered in the present
case.
4. In reply, Mr. Sandeep Sethi, learned senior counsel appearing for
the 2nd respondent submitted that during a surprise check conducted by
the Enforcement Team it was revealed that the petitioner was indulging in
direct theft of electricity. Such an offence of theft is punishable with three
years of imprisonment besides fine and thus, was a cognizable offence.
Since a cognizable offence was committed, it was permissible for the 2 nd
respondent to lodge a FIR and the police authorities are bound to
investigate the same in accordance with law so as to ascertain the persons
who are responsible for the said theft and to take appropriate proceedings
under the law. He submitted that nothing has been specified under the
Electricity Act, which makes the said offence non-cognizable. Since the
statute was silent on this aspect as to whether theft of electricity is a
cognizable offence or not, the Cr.P.C. needs to be relied upon for the said
purpose. He also pointed out that in respect of every offence which is
cognizable, it is the duty and responsibility of the police authorities to
register a FIR and investigate the same. He submitted that Section 151 of
the Electricity Act does not create a bar on registration of the FIR and
(Crl.M.C. 4371/2005) Page 5 of 24
investigation of the case by the police authorities. The bar, if any, is on
the court to take cognizance of a case without there being a complaint by
the competent person, which stage has not reached as of today. He
submitted that the matter was at the investigation stage, when the
petitioner approached this Court. Learned counsel submitted that the
question of applicability of 2005 Rules does not arise in this case. He
maintained that the Sohan Lal's case(supra) has been correctly decided
but in this case since the only limited issue is about the registration of the
FIR in accordance with the provisions of the Cr.P.C., this Court need not
decide the issue of applicability of the regulations to the facts of the
present case.
5. In order to appreciate the respective contentions, it is essential to
first take note of the relevant provisions of the Electricity Act, which are
Sections 135, 138, 151, 154, 155 and 175 and they read as follows:-
"135. Theft of Electricity.- (1)Whoever, dishonestly, --
a. taps, makes or causes to be made any connection
with overhead, underground or under water lines
or cables, or service wires, or service facilities of
a licensee; or
b. tampers a meter, installs or uses a tampered
meter, current reversing transformer, loop
connection or any other device or method which
interferes with accurate or proper registration,
calibration or metering of electric current or
otherwise results in a manner whereby electricity
is stolen or wasted; or
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c. damages or destroys an electric meter,
apparatus, equipment, or wire or causes or allows
any of them to be so damaged or destroyed as to
interfere with the proper or accurate metering of
electricity, so as to abstract or consume or use
electricity shall be punishable with imprisonment
for a term which may extend to three years or
with fine or with both:
Provided that in a case where the load
abstracted, consumed, or used or attempted
abstraction or attempted consumption or
attempted use -
i. does not exceed 10 kilowatt, the fine
imposed on first conviction shall not be less than
three times the financial gain on account of such
theft of electricity and in the event of second or
subsequent conviction the fine imposed shall not
be less than six times the financial gain on
account of such theft of electricity;
ii. exceeds 10 kilowatt, the fine imposed on
first conviction shall not be less than three times
the financial gain on account of such theft of
electricity and in the event of second or
subsequent conviction, the sentence shall be
imprisonment for a term not less than six months
but which may extend to five years and with fine
not less than six times the financial gain on
account of such theft of electricity:
Provided further that if it is proved that any
artificial means or means not authorized by the
Board or licensee exist for the abstraction,
consumption or use of electricity by the
consumer, it shall be presumed, until the contrary
is proved, that any abstraction, consumption or
use of electricity has been dishonestly caused by
such consumer.
2. Any officer authorized in this behalf by the State
Government may -
a. enter, inspect, break open and search any place
or premises in which he has reason to believe
that electricity [has been, is being], used
unauthorisedly;
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b. search, seize and remove all such devices,
instruments, wires and any other facilitator or
article which [has been, is being], used for
unauthorized use of electricity;
c. examine or seize any books of account or
documents which in his opinion shall be useful for
or relevant to, any proceedings in respect of the
offence under sub-section (1) and allow the
person from whose custody such books of
account or documents are seized to make copies
thereof or take extracts therefrom in his
presence.
3. The occupant of the place of search or any
person on his behalf shall remain present during
the search and a list of all things seized in the
course of such search shall be prepared and
delivered to such occupant or person who shall
sign the list:
Provided that no inspection, search and seizure of
any domestic places or domestic premises shall
be carried out between sunset and sunrise except
in the presence of an adult male member
occupying such premises.
4. The provisions of the Code of Criminal Procedure,
1973,( 2 of 1974) relating to search and seizure
shall apply, as far as may be, to searches and
seizure under this Act.
138. Interference with meters or works of
licensee.-(1) Whoever, -
a. unauthorisedly connects any meter, indicator or
apparatus with any electric line through which
electricity is supplied by a licensee or disconnects
the same from any such electric line; or
b. unauthorisedly reconnects any meter, indicator or
apparatus with any electric line or other works
being the property of a licensee when the said
electric line or other works has or have been cut
or disconnected; or
(Crl.M.C. 4371/2005) Page 8 of 24
c. lays or causes to be laid, or connects up any
works for the purpose of communicating with any
other works belonging to a licensee; or
d. maliciously injures any meter, indicator, or
apparatus belonging to a licensee or willfully or
fraudulently alters the index of any such meter,
indicator or apparatus or prevents any such
meter, indicator or apparatus from duly
registering; shall be punishable with
imprisonment for a term which may extend to
three years, or with fine which may extend to ten
thousand rupees, or with both, and , in the case
of a continuing offence, with a daily fine which
may extend to five hundred rupees; and if it is
proved that any means exist for making such
connection as is referred to in clause (a) or such
re-connection as is referred to in clause (b), or
such communication as is referred to in clause
(c), for causing such alteration or prevention as is
referred to in clause (d), and that the meter,
indicator or apparatus is under the custody or
control of the consumer, whether it is his
property or not, it shall be presumed, until the
contrary is proved, that such connection,
reconnection, communication, alteration,
prevention or improper use, as the case may be,
has been knowingly and willfully caused by such
consumer.
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.
154. Procedure and power of Special
Court.-(1) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2 of
1974), every offence punishable under sections
135 to 139 shall be triable only by the Special
(Crl.M.C. 4371/2005) Page 9 of 24
Court within whose jurisdiction such offence has
been committed.
(2)Where it appears to any court in the course of
any inquiry or trial that an offence punishable
under sections 135 to 139 in respect of any
offence that the case is one which is triable by a
Special Court constituted under this Act for the
area in which such case has arisen, it shall
transfer such case to such Special Court, and
thereupon such case shall be tried and disposed
of by such Special Court in accordance with the
provisions of this Act:
Provided that it shall be lawful for such Special
Court to act on the evidence, if any, recorded by
any court in the case of presence of the accused
before the transfer of the case to any Special
Court:
Provided further that if such Special Court is of
opinion that further examination, cross-
examination and re-examination of any of the
witnesses whose evidence has already been
recorded, is required in the interest of justice, it
may resummon any such witness and after such
further examination, cross-examination or re-
examination, if any, as it may permit, the witness
shall be discharged.
(3)The Special Court may, notwithstanding
anything contained in subsection (1) of section
260 or section 262 of the Code of Criminal
Procedure, 1973 (2 of 1974), try the offence
referred to in sections 135 to 139 in a summary
way in accordance with the procedure prescribed
in the said Code and the provisions of sections
263 to 265 of the said Code shall, so far as may
be, apply to such trial:
(Crl.M.C. 4371/2005) Page 10 of 24
Provided that where in the course of a
summary trial under this subsection, it appears to
the Special Court that the nature of the case is
such that it is undesirable to try such case in
summary way, the Special Court shall recall any
witness who may have been examined and
proceed to re-hear the case in the manner
provided by the provisions of the said Code for
the trial of such offence:
Provided further that in the case of any
conviction in a summary trial under this section, it
shall be lawful for a Special Court to pass a
sentence of imprisonment for a term not
exceeding five years.
(4)A Special Court may, with a view to obtaining
the evidence of any person supposed to have
been directly or indirectly concerned in or privy
to, any offence tender pardon to such person on
condition of his making a full and true disclosure
of the circumstances within his knowledge
relating to the offence and to every other person
concerned whether as principal or abettor in the
commission thereof, and any pardon so tendered
shall , for the purposes of section 308 of the Code
of Criminal Procedure,1973 (2 of 1974), be
deemed to have been tendered under section 307
thereof.
(5)The Special Court may determine the civil
liability against a consumer or a person in terms
of money for theft of energy which shall not be
less than an amount equivalent to two times of
the tariff rate applicable for a period of twelve
months preceding the date of detection of theft
of energy or the exact period of theft if
determined whichever is less and the amount of
civil liability so determined shall be recovered as if
it were a decree of civil court.
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(6)In case the civil liability so determined finally
by the Special Court is less than the amount
deposited by the consumer or the person, the
excess amount so deposited by the consumer or
the person, to the Board or licensee or the
concerned person, as the case may be, shall be
refunded by the Board or licensee or the
concerned person, as the case may be, within a
fortnight from the date of communication of the
order of the Special Court together with interest
at the prevailing Reserve Bank of India prime
lending rate for the period from the date of such
deposit till the date of payment.
Explanation.- For the purposes of this section, "
civil liability" means loss or damage incurred by
the Board or licensee or the concerned person, as
the case may be, due to the commission of an
offence referred to in sections 135 to 139.
155. Special Court to have powers of Court
of Session.-Save as otherwise provided in this
Act, the Code of Criminal Procedure, 1973 (2 of
1974), in so far as they are not inconsistent with
the provisions of this Act, shall apply to the
proceedings before the Special Court and for the
purpose of the provisions of the said enactments,
the Special Court shall be deemed to be a Court
of Session and shall have all powers of a Court of
Session and the person conducting a prosecution
before the Special Court shall be deemed to be a
Public Prosecutor."
175. Provisions of this Act to be in addition
to and not in derogation of other laws.- The
provisions of this Act are in addition to and not in
derogation of any other law for the time being in
force."
6. Section 135 of the Electricity Act provides that whoever dishonestly
(Crl.M.C. 4371/2005) Page 12 of 24
abstracts, consumes or uses electricity in a manner mentioned in Clauses
(a) to (c) to Section 135 shall be punishable with imprisonment of either
description for a term which may extend to three years or with fine or with
both. Section 138 makes the interference with meters or works of licensee
in the manner mentioned therein punishable with imprisonment for a term
which may extend to three years, or with fine which may extend to ten
thousand rupees, or with both, and, in the case of a continuing offence,
with a daily fine which may extend to five hundred rupees. Section 151 of
the Act states that 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.
Section 154 of the Act opens with a non-obstante clause and provides that
every offence punishable under Sections 135 to 139 shall be triable only by
the Special Court within whose jurisdiction such offence has been
committed. Section 154(3) provides that notwithstanding anything
contained in sub-section (1) of Section 260 or Section 262 of the Cr.P.C.
the Special Court may try the offences referred to in Sections 135 to 139 in
a summary way in accordance with the procedure prescribed in the Code
and the provisions of Sections 263 to 265 of the Code shall, so far as may
be, apply to such trial. Section 155 of the Act provides that save as
(Crl.M.C. 4371/2005) Page 13 of 24
otherwise provided in this Act, the provisions of the Cr.P.C., insofar as they
are not inconsistent with the provisions of the Act shall apply to the Special
Court and for the purpose of the said enactments the Special Court shall
be deemed to be a Court of Session and shall have all powers of a Court of
Session and the person conducting a prosecution before the Special Court
shall be deemed to be a Public Prosecutor. Section 175 states that the
provisions of this Act are in addition to and not in derogation of any other
law for the time being in force.
7. Coming then to the provision of the Cr.P.C., it is seen that the code
demarcates the offences into two categories, viz. cognizable and non-
cognizable offences. As per Part II of Schedule I of the Code, any offence
punishable with three years or more of imprisonment is a cognizable
offence. Accordingly, Section 154 of the Cr.P.C. prescribes that in respect
of every offence which is a cognizable one, information thereof is to be
given to an officer in-charge of a police station, who shall reduce the same
into writing. Thus, it is the duty and responsibility of the police authorities
to register a FIR. Sub-section (3) of Section 154 further obligates the
police authorities to investigate the same as per the manner prescribed in
subsequent sections and thereafter submit its report to the Magistrate,
who is empowered to take cognizance of the offence on police report
under Section 173 of the Code, on completion of investigation. In that
regard, the provisions of Section 4 which are material are reproduced
(Crl.M.C. 4371/2005) Page 14 of 24
below:-
"4. Trial of offence under the Indian
Penal Code and other laws.-(1) All offences
under the Indian Penal Code (45 of 1860)shall be
investigated, inquired into, tried and otherwise
dealt with according to the provisions hereinafter
contained.
(2) All offences under any other law shall be
investigated, inquired into, tried, and otherwise
dealt with according to the same provisions, but
subject to any enactment for the time being in
force regulating the manner of place of
investigating, inquiring into, trying or otherwise
dealing with such offences."
8. It is seen from the bare reading of Section 4 that the provisions of
the Cr.P.C. would be applicable where an offence under the IPC or under
any other law is being investigated, inquired into, tried or otherwise dealt
with. The provisions of the Cr.P.C. would apply to offences under any
other law, such as the Electricity Act and can also be investigated, inquired
into or tried with in accordance with the provisions of the Cr.P.C., except in
a case of an offence where the procedure prescribed thereunder is
different than the procedure prescribed under Cr.P.C. The Electricity Act
does not contain any provision which stipulates a separate procedure for
the offences under the said Act. In fact, Section 155 of the Act
specifically provides that the provisions of the Cr.P.C. shall apply to the
proceedings before the Special Court insofar as they are not inconsistent
with the provisions of the Act. Section 154(3) indicates that the trial
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before the Special Court has to be conducted in a summary way in
accordance with the procedure prescribed and the provisions of Sections
263 to 265 of the Code shall so far as may be applied to such trial.
Section 175 makes it clear that the provisions of the Act are in addition
and not in derogation of any other law for the time being in force.
9. Section 151 of the Electricity Act as it stood at the relevant time
provided the manner of taking cognizance of an offence and the
cognizance has to be taken on the basis of a complaint filed by the
officers/authorities mentioned therein. It does not mean that the police
cannot investigate a cognizable offence under the Cr.P.C. Section 151 of
the Act comes into operation at the stage when the court intends to take
cognizance of offences under Sections 135 to 139 of the Act, and it has
nothing to do with the statutory power of the police to investigate into a
FIR, which discloses a cognizable offence, in accordance with Chapter XII
of the Cr.P.C. In other words, the statutory power of the police to
investigate under the Code is not in any way controlled or circumscribed
by Section 151 of the Act. An offence of theft of electricity is punishable
with three years of imprisonment besides fine and is a cognizable offence.
As a cognizable offence had been committed, it was permissible for the
respondent to lodge a FIR and for the police authorities to investigate the
same in accordance with law. Section 151 of the Electricity Act enables
certain authorities / officers to become complainants before the court in
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such cases and file complaint before the court in writing. However, that
does not mean that other avenues for investigation which are available are
excluded, since no such special procedure for trying the offences under
the Electricity Act is provided and cases under Electricity Act are also
governed by the Cr.P.C. Therefore, the submission of the learned counsel
appearing for the petitioner that the police cannot investigate into the FIR
filed by the officer authorized by the electricity company has to be
rejected.
10. In M. Narayandas Vs. State of Karnataka and Others,
reported in (2003) 11 SCC 251, the contention of the accused-respondent
was that since the case fell under Section 195 Cr.P.C., it was the
provisions of Chapter XXVI Cr.P.C. which would apply and not that of
Chapter XII Cr.P.C. Therefore, it was submitted that in such a case the
only procedure which could be followed was to make an application to the
Court, but by not following the procedure laid down under Chapter XXVI of
the CrPC. It was urged that if an application had been made to the court
and the court had taken a decision, then under Section 341 Cr.P.C. an
appeal could have been filed. By making a complaint to the police, who
would then make a report to a court and the court would take cognizance,
the respondent was deprived of the right of appeal as provided under
Section 341. Rejecting the contention, the Court held as follows:-
(Crl.M.C. 4371/2005) Page 17 of 24
"8. We are unable to accept the submissions
made on behalf of the Respondents. Firstly, it is
to be seen that the High Court does not quash
the complaint on the ground that Section 195
applied and that the procedure under Chapter
XXVI had not been followed. Thus such a ground
could not be used to sustain the impugned
judgment. Even otherwise, there is no substance
in the submission. The question whether Sections
195 and 340 of the Criminal Procedure Code
affect the power of the police to investigate into a
cognizable offence has already been considered
by this Court in the case of State of Punjab v. Raj
Singh. In this case it has been that as follows:
"2. We are unable to sustain the impugned
order of the High Court quashing the FIR
lodged against the respondents alleging
commission of offences under Sections 419,
420, 467, and 468 IPC by them in course of
the proceeding of a civil suit, on the ground
that Section 195(1)(b)(ii) CrPC prohibited
entertainment of and investigation into the
same by the police. From a plain reading of
Section 195 CrPC it is manifest that it comes
into operation at the stage when the court
intends to take cognizance of an offence
under Section 190(1) CrPC; and it has
nothing to do with the statutory power of the
police to investigate into an FIR which
discloses a cognizable offence, in accordance
with Chapter XII of the Code even if the
offence is alleged to have been committed
to, or in relation to, any proceedings in
court. In other words, the statutory power of
the police to investigate under the Code is
not in any way controlled or circumscribed
by Section 195 CrPC. It is or course true that
upon the charge-sheet (challan), if any, filed
on completion of the investigation into such
an offence the court would not be competent
to take cognizance thereof in view of the
embargo of Section 195(1)(b) CrPC, but
nothing therein deters the court from filling a
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complaint for the offence on the basis of the
FIR (filed by the aggrieved private party) and
the materials collected during investigation,
provided it forms the requisite opinion and
follows the procedure laid down in Section
340 CrPC. The judgment of this Court in
Gopalakrishna Menon v. Raja Reddy on
which the High Court relied, has no manner
of application to the facts of the instant case
for there cognizance was taken on a private
complaint even though the offence of forgery
was committed in respect of a money receipt
produced in the civil court and hence it was
held that the court could not take cognizance
on such a complaint in view of Section 195
CrPC."
Not only are we bound by this judgment but we
are also in complete agreement with the same.
Sections 195 and 340 do not control or
circumscribe the power of the police to
investigate under the Criminal Procedure Code.
Once investigation is completed then the
embargo in Section 195 would come into play and
the Court would not be competent to take
cognizance. However that Court could then file a
complaint for the offence on the basis of the FIR
and the material collected during investigation
provided the procedure laid down in Section 340
Criminal Procedure Code is followed. Thus no
right of the Respondents, much less the right to
file an appeal under Section 341, is affected."
11. In Deepa Singh Vs. State, reported in 1998 IV AD (DELHI) 492, a
complaint was made to the police against the petitioner therein under
Section 466-A of the Delhi Municipal Corporation Act, 1957 alleging that
the petitioner had made certain deviations in the construction of the
building in violation of the sanctioned building plan. The police on
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receiving the complaint initiated investigation into the matter and recorded
the statement of the Junior Engineer and others. On completion of the
investigation, a police report was filed in the court of Metropolitan
Magistrate under Section 173 of the Code of Criminal Procedure. The
learned Metropolitan Magistrate took cognizance of the offence under
Section 332 read with Section 461 of the Act and proceeded to frame
charges against the petitioner. At that stage, the petitioner took an
objection that the learned Metropolitan Magistrate did not have the
jurisdiction to proceed with the trial of the offence as no complaint had
been filed before the Court by any officer of the Corporation authorized by
the Commissioner in that behalf. It was argued that under Section 467 of
the Act no court can proceed to the trial of any offence under Section 332
of the Act except on a complaint of the Commissioner or any person
authorized by him by a general or special order in this behalf and since no
complaint has been filed by the Commissioner or any person authorized by
him, the Metropolitan Magistrate ought not to have proceeded with the
trial of the case on a police report. Rejecting this argument, Anil Dev
Singh, J held that:
"5. It is apparent from the reading of this
Section that the provisions of the Code of
Criminal Procedure are applicable where an
offence under the Indian Penal Code or under
any other law is being investigated, inquired into,
tried or otherwise dealt with. This position is clear
from sub-section (2) of Section 4 of the Code of
Criminal Procedure which provides that all
(Crl.M.C. 4371/2005) Page 20 of 24
offences, whether under the Indian Penal Code or
under any other law, are required to be
investigated, inquired into or tried according to
the provisions of the Code of Criminal Procedure
except in case of an offence where the procedure
prescribed thereunder is different than the
procedure prescribed under the Code of Criminal
Procedure. At this stage it needs to be noted that
Section 466-A of the Delhi Municipal Corporation
Act specifically lays down that the Code of
Criminal Procedure shall apply to an offence
under sub-Section (5) of Section 313 or Section
332 or sub-section (1) of Section 334 or Section
343 or Section 344 or Section 345 or Section 347
and an offence under sub-section (1) of Section
317 or sub-section (1) of Section 320 or sub-
section (1) or Section 321 or sub-section (1) of
Section 325 or Section 339 in relation to any
street which is a public street; as if it were a
cognizable offence for the purpose of
investigation of such offence; and for the purpose
of all matters other than matters referred to in
Section 42 of the Code, and arrest of a person,
except on the complaint of, or upon information
received from such officer of the Corporation not
being below the rank of Deputy Commissioner, as
may be appointed by the Commissioner.
Therefore, the procedure to be followed for the
purpose of investigation of the offences under
Section 332 of the Delhi Municipal Corporation
Act is the one which is laid down in the Code of
Criminal Procedure, 1973. Much stress was laid
by the learned counsel for the petitioner on the
provisions of Section 467 of the Delhi Municipal
Corporation Act which lays down that save as
otherwise provided in the instant Act, no court
shall proceed to the trial of any offence under
certain sections of the Act including Section 332
unless a complaint on or upon receiving
information from the Commissioner or a person
authorised by him is filed. ....
6. Learned counsel for the petitioner submitted
that since the complaint was not filed by the
(Crl.M.C. 4371/2005) Page 21 of 24
Commissioner or any person authorised by him,
therefore, the Court could not proceed to the trial
of the offence under Section 332 of the Act. In
making the submission, learned counsel for the
petitioner has not given due consideration to the
fact that the prosecution could be initiated upon
information received by the Court from an officer
of the Corporation. Such an information can be
received by the court from the Officer of the
Corporation either directly or through the agency
of the police. Where the police starts investigation
into the matter on the information furnished by
the authorised officer of the Corporation, who is
competent to file a complaint, and the police on
the basis of the said information investigates the
matter and finally files a report under Section 173
of the Code of Criminal Procedure, it cannot be
said that the Court to which such a report is filed
is not acting on the information received from the
authorised officer of the Corporation. Section 467
does not lay down as to how the information
should be received by the Court from the
Commissioner or the person authorised by him in
this behalf. It nowhere says that the information
should be directly filed in the Court by the
Commissioner or the person authorised by him in
this behalf. Therefore, the information could also
be received by the Metropolitan Magistrate
through the report filed by the police under
Section 173 of the Code which in turn is based on
the complaint of the Commissioner or the person
authorised by him. Therefore, the submission of
learned counsel for the petitioner that the Court
could not proceed to the trial of the offence as
the complaint was not filed by the Commissioner
or the person authorised by him in this behalf, is
of no avail to him. Accordingly, the submission of
the learned counsel for the petitioner is
rejected...."
12. In the case of Bimla Gupta (supra), A.K. Sikri, J. had considered
the judgment of the Supreme Court in M. Narayandas (supra) and
(Crl.M.C. 4371/2005) Page 22 of 24
judgment of this Court in Deepa Singh (supra) and held as follows:-
"14. Thus, the clear principle which emerges
from the aforesaid discussion is that even when a
Magistrate is to take cognizance when a
complaint is filed before it, that would not mean
that the police cannot take cognizance thereof.
15. It is stated at the cost of repetition that
the offences under the Electricity Act are also to
be tried by applying the procedure contained in
Cr.P.C. Thus, it cannot be said that a complete
machinery is provided under the Electricity Act as
to how such offences are to be dealt with. In
view thereof, I am of the opinion that learned
counsel for the NDPL, is right in his submission
that if the offence under the Cr. P.C. is
cognizable, provisions of Chapter XII containing
Section 154 Cr.P.C. and onward would become
applicable and it would be the duty of the police
to register the FIR and investigate into the same.
Maxim generalibus specialia derogant shall have
no application when the provisions are read in the
aforesaid manner. Sections 135 and 138 only
prescribe that certain acts relating to theft of
electricity etc. would also be offences. It also
enables certain persons/parties, as mentioned in
Section 151, to become complainant in such
cases and file complaint before a Court in writing.
When such a complaint is filed, the Court would
be competent to take cognizance straightway.
However, that would not mean that other
avenues for investigation into the offence which
are available would be excluded. It is more so
when no such special procedure for trying the
offences under the Electricity Act is formulated
and the cases under this Act are also to be
governed by the Code of Criminal Procedure."
13. The SLP preferred against the decision in Bimla Gupta was
dismissed in limine. In Bimla Gupta A.K. Sikri, J also referred to the
Electricity Rules of 2005 and the Regulations of 2002, validity of which has
(Crl.M.C. 4371/2005) Page 23 of 24
been upheld by Sanjay Kishan Kaul, J in Sohan Lal's case(supra).
However, in view of the foregoing discussion it is not necessary for us to
express any opinion on the question of applicability of the Regulations,
2002. The Rules of 2005 are obviously inapplicable in the facts of the
present case as the FIR was registered in 2003.
14. In our opinion, Bimla Gupta's case(supra) lays down the correct
position of law and does not require any reconsideration. In that view of
the matter, we need not express any opinion on the points raised by the
learned single Judge in his referring order. The only other contention
raised in this petition is that the inspection was not carried by the
authorized officer. The petitioner is entitled to raise this and other
contentions before the trial court at the appropriate stage. Therefore, we
do not see any reason to entertain the present petition and the same is
hereby dismissed.
CHIEF JUSTICE
SANJIV KHANNA, J.
MARCH 24, 2009 VKR/nm (Crl.M.C. 4371/2005) Page 24 of 24