TUKARAM PANDURANG LALPOTU Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the order passed by learned J.M.F.C. Parbhani in R.C.C. No.212 of 2004 dated 25.5.2004 thereby issuing process against the petitioner accused for the offences punishable under Sections 135 and 138 of Electricity Act 2003 and confirmed in Criminal Revision No. 146 of 2005 by the 2nd Ad -hoc Additional Sessions Judge, Parbhani on 6.4.2005, the original accused has preferred this writ petition.

(2.) Brief facts, giving rise to the present writ petition are as follows: -

(3.) Learned counsel for the petitioner submits that in view of amendment to Sections 153 and 154 of Electricity Act 2003, the Magistrate is not empowered to take cognizance of offences punishable under Sections 135 and 138 of Electricity Act 2003 and try those offences. The Special Courts are constituted for the trial of the offences referred to in Sections 135 to 140 and Section 150 and in view of provisions of Section 153 of the Act 2003, the Special Court shall consist of single Judge, who shall be appointed by the State Government with concurrence of the High Court and a person shall not be qualified for appointment as a Judge of a Special Court unless he was, immediately before such appointment, an Additional District and Sessions Judge. In its application to the State of Maharashtra, in Section 153, after sub section (4), the State Amendment (Maharashtra) added sub -section (5) thereby making it clear that, where no Special Court for any area or areas has been constituted under sub -section (1), one or more Additional District and Sessions Judges, as may be designated by the High Court, for such area or areas, from time to time, shall exercise the powers of the Special Court under this Act and any Judge so designated shall be deemed to be a Special Court for the purpose of this Act. In view of provision of Section 151 of the Act of 2003, the Special Courts constituted under Section 153 shall be competent to take cognizance of the offence without the accused being committed to it for trial. In view of sub -section (1) of Section 154, every offence punishable under Sections 135 to 140 and Section 150 shall be triable only by the Special Court, within whose jurisdiction such offence has been committed. Despite such observations have been made by this court in the order dated 2.12.2005 while issuing Rule and even though learned A.P.P. was directed to obtain the instructions, either from the State or from the Registrar General, High Court, Appellate Side, Bombay, whether any Special Courts are established and if not, whether any notifications have been issued under section 153(5) by the High Court, one letter dated 22.3.2004 issued by the Registrar (Legal), High Court, Bombay which is addressed to the Chairman, Maharashtra State Electricity Board on the subject of issuance of administrative direction for acceptance of cases involving offences under the Electricity Act 2003 and directions regarding grant of remand etc. produced before the court, wherein it is stated that the Electricity Board may file written complaint before the Magistrate through the person mentioned in Section 151 of the Electricity Act and the Magistrate shall thereafter follow the procedure, as laid down in Sections 200 and 202 of Cr.P.C. Learned counsel submits that entire approach of the Magistrate of accepting the complaint and issuing process thereon is per -se illegal and thus liable to be quashed and aside. Learned counsel submits that as per the provisions of Section 201 of Cr.P.C. if the complaint is made to the Magistrate, who is not competent to take cognizance of the offence, he shall, if the complaint is in writing, return it for presentation to the proper court with an endorsement to that effect and if the complaint is not in writing, direct the complainant to the proper court. Even the learned Magistrate has not followed the procedure as contemplated under Section 201 of Cr.P.C.