KUNJU Vs. STATE OF KERALA

JUDGEMENT

(1.) These three revisions arise from three cases numbered as CC No. 2/2009, CC No. 3/2009 and CC No. 4/2009 against the common accused, the petitioner, in all of them for offences under Sections 135 and 138 of the Indian Electricity Act, 2003 (for short, 'the Act') on the file of the VI Additional Sessions Court, Ernakulam. Cognizance of the offences against the petitioners/accused was taken in the above cases by the aforesaid court on the basis of final report filed by the Sub Inspector of Police, Moovattupuzha, after completion of investigation in three crime cases registered against the petitioner imputing him of having committed theft of electricity tampering the electric meter in his company and, thus, causing loss to the State Electricity Board. At the point of time when the crimes were registered, and also final reports filed in the above cases, authority was not conferred on the police to register and investigate energy theft cases without a complaint in writing from the Government or authority or officer named under Section 151 of the Act is not a matter in dispute. However, when that challenge was raised by the accused at the time of hearing on the framing of charges in the cases before the special court, contending that the cognizance taken on report filed by an incompetent authority is not sanctioned by law, the court below passed a common order in all the three cases holding that the lacuna pointed out could be cured by filing of complaint in the respective cases by the State Electricity Board as under Rule 12(4) of the Electricity Rules, 2005. Pursuant to such common order, complaints were filed under Rule 12(4) of the Electricity Rules, as directed, to enable the court to take cognizance of the offences imputed on the basis of the final reports filed by the police. Acting upon such complaints, the court, after hearing both sides, framed charges against the accused, separately, in all the three cases. Propriety, legality and correctness of the common order passed by the court holding that the lacuna could be cured by presenting of fresh complaint by the Board, and also the charges framed, separately, in each of the cases are challenged in these revisions by the accused. I heard the learned counsel for the petitioner and also the learned, Public Prosecutor. Standing counsel for Kerala State Electricity Board, though the Board has not been made a party in these revisions, was also heard in the matter.

(2.) At the point of time when the crimes were registered and reports were filed before the court, the police was not empowered to do so under the statutory prescriptions applicable for taking cognizance of offence over energy thefts is not open to doubt nor is disputed. When that be so, the court below was not justified in holding that the crime registered over energy theft without a complaint from a competent person thereof and final reports filed in such crime after investigation is not fatal, but, a defect which could be cured by filing a subsequent complaint by the Board. Where the police lacked authority to register the crime and investigate the case relating to energy theft without a complaint from the competent authority, cognizance of the offence on the basis of the report filed in such cases cannot be taken by the court as it is not sanctioned by law. A proviso has now been added under Section 151 of the Act, which presently enables cognizance of the offence being, taken on a police report filed under Section 173 of the Code of Criminal Procedure would not enable the court to take cognizance of the offence in respect of crimes registered on report filed by the police prior to the coming into force of that proviso, which was made applicable only from 15-06-2007, where the crimes thereof had been registered without a complaint from an authority as named under Section 151 of the Act. The court was given the power to take cognizance of an offence on a report filed by a police officer under Section 173(2) of the Code of Criminal Procedure, for the first time after the proviso added to Section 151 came into force with effect from 15-06-2007. Section 151 of the Act, previously, reads thus: