SRI A.M.C.S. SWAMY ADE/DPE/HYD (CENTRAL) versus MEHDI AGAH KARBALAI & ANR. on 23 July 2019

SRI A.M.C.S. SWAMY

ADE/DPE/HYD (CENTRAL)

v.

MEHDI AGAH KARBALAI & ANR.

(Criminal Appeal No. 1102 of 2019)

JULY 23, 2019

[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]

Code of Criminal Procedure, 1973: s.482 – Quashing ofcriminal proceedings against respondent no.1 under the ElectricityAct – The Electricity Department inspected the premises of consumer-respondent no.1 and found meter tampered – The said meter wasreplaced with another meter and earlier meter sent for examinationwhich on examination was found to be tampered – Loss assessed atRs.6.28 lacs – Case of appellant that offence committed byrespondent no.1 was second offence and the first offence registeredagainst respondent no.1 was compounded – Complaint registeredunder s.135 of 2003 Act – Special Court took cognizance of caseunder s.151 of the 2003 Act – Petition for quashing the proceedingsfiled on the ground that the Special Court took cognizance withoutany order of committal and the same was in violation of s.193 Cr.P.C.– High Court allowed the petition and quashed the proceedings –On appeal, held: Second proviso to s.151 of the 2003 Act speciallyempowers the Special Court constituted under s.153 of the 2003Act to take cognizance of an offence without the accused beingcommitted – In view of the specific provision under s.151 of the2003 Act, Special Court is empowered to take cognizance withoutthere being an order of committal as contemplated under s.193,Cr.P.C. – High Court did not consider the said proviso to s.151while passing the impugned order – The impugned order is setaside – Electricity Act, 2003 – s.151 and its proviso, s.193.

Allowing the appeal, the Court

HELD : It is true that as per the procedure under Section193 Cr.P.C., no Court of Session shall take cognizance of anyoffence as a Court of original jurisdiction unless the case has

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Abeen committed to it by a Magistrate except as otherwiseexpressly provided by the Code, or any other law for the timebeing in force. Section 151 of the Electricity Act, 2003 isaltogether a new provision. Section 151 of the Act provides thatno court shall take cognizance of an offence punishable underthe Act except upon a complaint in writing made by theBAppropriate Government or Appropriate Commission or any oftheir officer authorised by them or a Chief Electrical Inspectoror an Electrical Inspector or licensee or the generating company,as the case may be, for this purpose. Second proviso to Section151 of the Electricity Act, 2003, specially empowers the SpecialCCourt constituted under Section 153 of the Electricity Act, 2003,to take cognizance of an offence without the accused beingcommitted. In view of the specific provision under Section 151of the Electricity Act, 2003, Special Court is empowered to takecognizance without there being an order of committal as contemplated under Section 193 Cr.P.C. When there is expressDprovision in the Special Act empowering the Special Court totake cognizance of an offence without the accused beingcommitted, it cannot be said that taking cognizance of offence bySpecial Court is in violation of Section 193 Cr.P.C. The HighCourt did not consider the said proviso to Section 151 and passedEthe impugned order. The order impugned is liable to be set aside.[Paras 10, 11] [701-A, B, D-G]

State of Andhra Pradesh, represented by its PublicProsecutor v. M/s. Shalini Steels Private Limited,Bollaram, Medak District 2011 CrlLJ 67 ; GangulaFAshok & another v. State of Andhra Pradesh (2000) 2SCC 504 : [2000] 1 SCR 468 – referred to.

Case Law Reference

From the Judgment and Order dated 03.12.2018 of the High Courtof Judicature at Hyderabad in Criminal Petition No. 13678 of 2011.H

Ms. Meenakshi Arora, Sr. Adv., Rakesh K. Sharma, Advs. forthe Appellant.

A. Sirajudeen, Sr. Adv., M. Srinivas R. Rao, Sarath S. Janardanan,Karri Venkata Reddy, Abid Ali Beeran P, S.Udaya Kumar Sagar, Advs.for the Respondents.

The Judgment of the Court was delivered by

R. SUBHASH REDDY, J. 1. Leave granted.

2. This Criminal Appeal is filed by the Officer of the StateDistribution Utility Southern Power Distribution of Telangana Limited(formerly known as APCPDCL) challenging the order dated 03.12.2018passed by the High Court of Judicature at Hyderabad in Criminal PetitionNo.13678 of 2011.

3. By the aforesaid order, the High Court has allowed the CriminalPetition No.13678 of 2011, which was filed under Section 482 of theCode of Criminal Procedure, 1973, and quashed the proceedings in E.S.C.No.3 of 2011 on the file of 1[st]Additional Metropolitan Sessions Judge,Hyderabad.

4. (a) Respondent No.1 herein is a consumer of electricitywith Service Connection bearing SC No.CZ007583 connected with aload of 12903 W of Southern Power Distribution of Telangana Limited(SPDTL). On 12.11.2009 at about 12.26 hours, premises of respondentNo.1 was inspected in his presence by the concerned staff of theappellant. At the time of inspection, the inspecting authorities have foundextra pressing and seal bit bulging marks along with seal wire on themeter box seal. The said meter was replaced with another meter andthe earlier meter was sent to MRT Lab for examination. The MRT Lab,on examination, certified that the meter was tampered. The loss therebywas assessed at Rs.6,28,383/- (Rupees six lakhs twenty eight thousandand three hundred and eighty three only). It is a case of the appellantthat the offence committed by respondent No.1 is a second offence.The first offence registered against respondent No.1 was in CrimeNo.491 of 2008 dated 25.11.2008. The first criminal case registeredagainst respondent No.1 was compounded on 03.08.2009 upon paymentof Rs.47,000/- (Rupees forty seven thousand only).

(b) When the appellant noticed tampering of meter, on receiptof report from MRT Lab, the concerned officer has lodged a complaint A

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Aon 24.11.2009 and the same was registered as First Information ReportNo.440 of 2009 on 25.11.2009, for the offence punishable under Section135 of Electricity Act, 2003. On filing the charge sheet, as contemplatedunder Section 173 of the Code of Criminal Procedure, 1973, on10.01.2011, the Special Court took cognizance of the case under Section151 of the Electricity Act, 2003 as amended by Act 26 of 2007, whichBcame into force from 15.06.2007, and registered the same as E.S.C.No. 3 of 2011.

(c) Respondent No.1 herein has filed Criminal Petition No.13678of 2011 before the High Court of Judicature at Hyderabad under Section482 of the Code of Criminal Procedure, 1973, seeking to quash theCaforesaid proceedings on two grounds. The first ground was that thecomplaint was not filed within twenty-four hours of disconnection asmandated under proviso to Section 135(1-A) of the Indian Electricity(Amendment) Act, 2007. Section 135(1-A) of the Indian Electricity(Amendment) Act, 2007, reads as under:D“(1-A) Without prejudice to the provisions of this Act, the licenseeor supplier, as the case may be, may, upon detection ofsuch theft of electricity, immediately disconnect the supply ofelectricity:

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EProvided further that such officer of the licensee or supplier,as the case may be, shall lodge a complaint in writing relating tothe commission of such offence in police station havingjurisdiction within twenty-four hours from the time of suchdisconnection:”F

The second ground was that the Special Court has takencognizance without any order of committal and the same is inviolation of Section 193 of the Code of Criminal Procedure, 1973. Insupport of the said contention, respondent No.1, before the HighCourt, relied on a decision in the case of State of Andhra Pradesh,Grepresented by its Public Prosecutor v. M/s. Shalini SteelsPrivate Limited, Bollaram, Medak District[1]. In the said case,High Court by relying on the decision of this Court in Gangula Ashok& another v. State of Andhra Pradesh[2]held that committal order 1 2011 CrlLJ 67

2 (2000) 2 SCC 504 = 2000(1) ALT (Crl) 174 (SC)

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is must, unless it is strictly made clear in the special enactment thatcommittal order is not required. In the impugned order, the High Court,mainly on the ground that the Special Court has taken cognizancedirectly and the same is not disputed by the learned PublicProsecutor, quashed the proceedings.

5. We have heard Ms. Meenakshi Arora, learned SeniorAdvocate, assisted by the Advocate on record for the appellant,and also Mr. A. Sirajudeen, learned Senior Advocate, assisted by theAdvocate on record for respondent No.1.

6(a) In this appeal, mainly it is contended by Ms. MeenakshiArora, learned Senior Advocate appearing for the appellant, that theHigh Court has passed the impugned order without examining the provisoto Section 151 of the Electricity Act, 2003. It is submitted that the provisoto Section 151 of the Electricity Act, 2003, specially empowers the SpecialCourt to take cognizance directly, as such, it cannot be said that takingcognizance by the Special Court is in violation of provision under Section193 of the Code of Criminal Procedure, 1973.

(b) Further, by referring to the additional affidavit and othermaterial placed on record, it is submitted that on 12.11.2009, whenit was suspected that respondent No.1 has tampered the meter, the saidmeter was replaced with another meter on the same day i.e., 12.11.2009and the supply was not disconnected on the said date and disconnectionhas taken place after receipt of the Lab report only, that is on25.11.2009. To substantiate the said plea, the learned Senior Advocatefurther submitted that a bill was issued for consumption of energy byrespondent No.1 for the period from 12.11.2009 till 25.11.2009.

(c) It is submission of the learned Senior Advocate that inthe case of Shalini Steels Private Limited (supra), on which reliancewas placed, the High Court has rendered it based on the decision of thisCourt in the case of Gangula Ashok (supra), which was a case arisingout of the Scheduled Castes and the Scheduled Tribes (Prevention ofAtrocities) Act, 1989. It is submitted that there is no provision in theScheduled Castes and the Scheduled Tribes (Prevention of Atrocities)Act, 1989, equivalent to Section 151 of the Electricity Act, 2003. Inthat context, considering the provisions of the Scheduled Castes and theScheduled Tribes (Prevention of Atrocities) Act, 1989, this Court hasheld that the Special Court cannot take cognizance directly unless the A

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Acase has been committed to it by a Committal Court as contemplatedunder Section 193 of the Code of Criminal Procedure, 1973.

(d) It is submitted that though respondent No.1 herein is anoffender of theft of electricity for the second time, the High Court hascommitted error in quashing the proceedings without taking intoBconsideration the proviso to Section 151 of the Electricity Act, 2003.

7. On the other hand, Sri Sirajudeen, learned Senior Advocateappearing for respondent No.1, referring to the counter affidavit andother material on record, has submitted that the disconnection was madeon 12.11.2009 and the complaint was lodged on 24.11.2009 which is exCfacie time barred and the same is contrary to the proviso to Section135(1A) of the Electricity Act, 2003 (Amendment Act 26 of 2007). It isfurther submitted that the Court which has taken cognizance of theoffence is not a Special Court within the meaning of the ElectricityAct, 2003. It is further submitted that merely because the PresidingOfficer is of the rank of Additional Sessions Judge, it cannot beDconstrued as a Special Court within the meaning of the ElectricityAct, 2003. It is submitted that as the Court lacks jurisdiction,further the complaint was not lodged within twenty-four hoursfrom disconnection, the cognizance taken against respondent No.1is rightly quashed by the High Court and there are no grounds to interfere.

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8. Having heard the learned counsel on both sides, we have perusedthe impugned order and the other material placed on record.

9. From a perusal of the order passed by the High Court, it isclear that the petition for quashing under Section 482 of the Code ofCriminal Procedure, 1973, was filed by respondent No.1 only on twoFgrounds viz., (i) the complaint was not lodged within twenty-four hoursas contemplated under Section 135(1A) of the Electricity Act, 2003(Amendment Act 26 of 2007), and (ii) the Special Court has takencognizance directly without an order of committal as contemplatedunder Section 193 of the Code of Criminal Procedure, 1973. TheGHigh Court had relied on its earlier decision in Shalini SteelsPrivate Limited (supra) which itself was rendered based on thedecision of this Court in Gangula Ashok (supra). The High Court, onlyon the ground that taking cognizance of the case by the Special Courtis not disputed by the learned Public Prosecutor, has passed theimpugned order, quashing the proceedings.

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SRI A.M.C.S. SWAMY ADE/DPE/HYD (CENTRAL) v. MEHDIAGAH KARBALAI [R. SUBHASH REDDY, J.]

10. It is true that as per the procedure under Section 193 of theCode of Criminal Procedure, 1973, no Court of Session shall takecognizance of any offence as a Court of original jurisdiction unlessthe case has been committed to it by a Magistrate except as otherwiseexpressly provided by the Code of Criminal Procedure, 1973, or anyother law for the time being in force. Section 193 of the Code of CriminalProcedure reads as under:

“193. Cognizance of offences by Courts of Session:- Exceptas otherwise expressly provided by this Code or by any other lawfor the time being in force, no Court of Session shall takecognizance of any offence as a court of original jurisdiction unlessthe case has been committed to it by a Magistrate under thisCode.”

11. Section 151 of the Electricity Act, 2003 is altogether a newprovision. Section 151 of the Act provides that no court shall takecognizance of an offence punishable under the Act except upon acomplaint in writing made by the Appropriate Government or AppropriateCommission or any of their officer authorised by them or a Chief ElectricalInspector or an Electrical Inspector or licensee or the generating company,as the case may be, for this purpose. Second proviso to Section 151of the Electricity Act, 2003, specially empowers the Special Courtconstituted under Section 153 of the Electricity Act, 2003, to takecognizance of an offence without the accused being committed. Inview of the specific provision under Section 151 of the Electricity Act,2003, we are of the view that Special Court is empowered to takecognizance without there being an order of committal ascontemplated under Section 193 of the Code of Criminal Procedure,1973. When there is express provision in the Special Act empoweringthe Special Court to take cognizance of an offence without theaccused being committed, it cannot be said that taking cognizance ofoffence by Special Court is in violation of Section 193 of the Codeof Criminal Procedure, 1973. It appears that the High Court has notconsidered the said proviso to Section 151 and passed the impugnedorder. As the impugned order is passed only on the said ground, weare of the view that the order impugned is liable to be set aside bythis Court.

12. Further, Mr. A. Sirajudeen, learned Senior Advocate appearingfor respondent No.1, has submitted that the complaint was not lodged A

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Awithin twenty-four hours as required under Section 135(1A) of theElectricity Act, 2003, and also submitted that the Court which has takencognizance is not a Special Court within the meaning of the ElectricityAct, 2003. Ms. Meenakshi Arora, learned Senior Advocate appearingfor the appellant, has submitted that the date of disconnection asmentioned earlier as 12.11.2009 is not correct and that the power supplyBwas disconnected only on 25.11.2009, as such, complaint was filed withinthe timeframe. Further, it is submitted by the learned Senior Advocateappearing for the appellant that the Government vide G.O.Ms. No.118,Energy (Power-II) Department, dated 18.10.2003, notified the 1[st]Additional District Judge’s Court as a Special Court for the purposeCof cases arising under the Electricity Act, 2003, as such, the SpecialCourt is having competent jurisdiction.

13. The aforesaid both grounds raised by respondent No.1cannot be accepted to sustain the impugned order. In view of thesubmission made by the learned Senior Advocate appearing for theDappellant that the disconnection was within the specified time andfurther the Government has already issued notification notifying the 1[st]Additional District Judge’s Court as a Special Court, we are notinclined to accept the submission made by the learned Senior counselappearing for respondent No.1.

E14. For the aforesaid reasons, we allow this appeal and setaside the impugned order dated 03.12.2018 in Criminal Petition No.13678of 2011 passed by the High Court of Judicature at Hyderabad. We makeit clear that we have not gone into merits of the matter and it is open forthe trial Court to record its own findings based on the evidence duringtrial.F

15. Accordingly, the appeal is allowed, with an observation asindicated above. Since the occurrence is of the year 2009, the trialcourt shall expedite the hearing of the case.

GDevika Gujal

Appeal allowed.

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