TNEB Vs. STATE

JUDGEMENT

(1.) ARGUMENTS advanced by Mr. S. Satheesh Kumar, learned Standing Counsel for TNEB and by Mrs. S. Prabha, learned Government Advocate for the first respondent and by Mr. M. Subash Babu, learned counsel for the second respondent are heard. The materials available on record are also perused.

(2.) A case was registered on the file of the Thangachimadam Police Station, Ramanathapuram District, in Crime No. 54 of 2001 against N. Sivakumar, the second respondent herein, for alleged offences punishable under Sections 39(1) and 44(1)(c) of the Indian Electricity Act, 1910 and Section 484 of the Indian Penal Code. However, before ever the investigation was completed, the Indian Electricity Act, 1910, was replaced by the Electricity Act, 2003 (Act 36 of 2003). The Investigating Officer submitted a final report alleging commission of the above said offences under the provisions of the Indian Electricity Act, 1910, which came to be repealed by the Electricity Act, 2003. Though the Electricity Act, 2003, specifically repeals Indian Electricity Act, 1910, Section 185 of the Electricity Act, 2003, saves the proceedings initiated under the repealed Act and also enables the continuation of the investigation and initiation of the proceedings in accordance with the substantive provisions of the repealed Act as the general application of Section 6 of the General Clauses Act, 1897 has been preserved by sub Section (5) of Section 185 of the Electricity Act, 2003. Section 6 of the General Clauses Act, 1897, sub Section (e) states that unless a different intention appears in the repealing Acts, the repeal shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture, punishment may be imposed as if the repealing Act or Regulation had not been passed. Therefore, the Investigating Officer was correct in continuing the investigation and submitting a final reports alleging commission of offences punishable under Sections 39(1) and 44(1)(c) of the Indian Electricity Act, 1910 and Section 484 of the Indian Penal Code, even though the Indian Electricity Act, 1910, came to be repealed by the Electricity Act, 2003.

(3.) SECTION 378 of the Code of Civil Procedure provides filing of appeal by the Public Prosecutor on the directions of the State Government or the Central Government, as the case may be, against an order of acquittal. However, sub clause (3) of Section 378 requires a leave to be obtained for preferring an appeal against an order of acquittal, if the appeal is to be preferred by the Public Prosecutor on the directions of the State Government or the Central Government, as the case may be. Admittedly, the prosecution against the second respondent was launched based on a police report and the trial ended in acquittal of the second respondent. As such, the State Government could have directed filing of an appeal with the leave of the Court under Section 378(1)(b) r/w. (3) of Cr.P.C. For reasons best known to the State Government, it has not chosen to prefer any such appeal and no petition seeking leave was moved by the Public Prosecutor at the instance of the State Government. Section 378 does not contemplate conferment of a right of appeal against the order on the de -facto complainant or a victim in a case instituted on police report. On the other hand, it provides a right of appeal to a complainant when the case which ended in acquittal happens to be one instituted on complaint. Such a right is also subject to a condition that a special leave for filing such an appeal should be obtained under sub section (4) of Section 378 Cr.P.C. A time limit has also been prescribed for applying for such special leave under sub section (5) of the said Section.