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2007 Supreme(Cal) 692
CALCUTTA HIGH COURT
ASHIM KUMAR ROY, J.
Ajoy Kumar Ghosh
v.
The State of W.B. and Anr.
C.R.R. No. 2374 of 2007
decided on : 7 -9 -2007.
Kumar Jyoti Tewari, Biswajit De, Ms. Nitikana Maity, Advocates, for Petitioner; Joymalya Bagchi, Bhaskar Mitra and Jayanta Narayan Chatterjee, Advocates for O.P. No. 2, Joy Sengupta, Advocate for State.
The amendment to Section 151 of the Electricity Act, 2003, by the Electricity (Amendment) Act, 2007, is retrospective in operation and applies to all pending cases where a charge-sheet has been filed by the police but the case has not come to its logical conclusion before the amendment came into force.
Headnote:
ELECTRICITY ACT - SECTION 151 - COGNIZANCE OF OFFENCES - AMENDMENT - RETROSPECTIVITY - ELECTRICITY (AMENDMENT) ACT, 2007 - The amendment to Section 151 of the Electricity Act, 2003, by the Electricity (Amendment) Act, 2007, which empowers the Court to take cognizance of offences punishable under the Act on a police report, is retrospective in operation and applies to all pending cases where a charge-sheet has been filed by the police but the case has not come to its logical conclusion before the amendment came into force.
Fact of the Case:
The petitioner, accused of electricity theft, challenged the cognizance taken by the Magistrate on a charge-sheet submitted by the police, arguing that Section 151 of the Electricity Act, 2003, prohibited taking cognizance of offences on a police report and that only a Special Court could try such offences.
Finding of the Court:
The Court held that the amendment to Section 151 of the Electricity Act, 2003, by the Electricity (Amendment) Act, 2007, is retrospective in operation and applies to all pending cases where a charge-sheet has been filed by the police but the case has not come to its logical conclusion before the amendment came into force. The Court further held that the Magistrate was empowered to take cognizance of the offence under Section 460(e) of the Code of Criminal Procedure, and that even if the cognizance was taken erroneously, the proceeding could not be quashed on that ground alone.
Issues: 1. Whether the amendment to Section 151 of the Electricity Act, 2003, by the Electricity (Amendment) Act, 2007, is retrospective in operation? 2. Whether the Magistrate was empowered to take cognizance of the offence under Section 460(e) of the Code of Criminal Procedure?
Ratio Decidendi: 1. The amendment to Section 151 of the Electricity Act, 2003, by the Electricity (Amendment) Act, 2007, is retrospective in operation as it is merely procedural in nature and does not affect any vested rights. 2. The Magistrate was empowered to take cognizance of the offence under Section 460(e) of the Code of Criminal Procedure, which empowers a Magistrate to take cognizance of any offence upon a report in writing of a police officer.
Final Decision: The Court dismissed the petition, holding that the amendment to Section 151 of the Electricity Act, 2003, is retrospective in operation and applies to the present case, and that the Magistrate was empowered to take cognizance of the offence.
(a) Tampering of manufacturing paper seals No. (L) 2341495 and (R) 2341495 having "VOID" marks on both sides of the Meter were detected.
(b) On close inspection tampering of plastic seals was detected on Meter body and on optical part.
(c) Tampered lead seal was detected on P.R. Box.
(d) No seal in the Meter terminal cover.
ACMRI was used to download date from the Meter analysed through laptop at side. The Meter was then uninstalled and opened and internal inspection reveal reset soldering marks across city secondary leads of red and yellow phases and also in neutral lead inside the Meter body.
The tampered evidence was photographed by S and L.P. Unit of Hooghly (D) Circle by Digital Camera. The tampered Meter with other incriminating articles were also seized under proper seizure list in presence of the witnesses.
2. Following the discovery of the aforesaid theft of electricity by tampering the Electric Meter the opposite party No. 2 herein made a complaint in writing to the Officer-in-Charge, Gurap Police Station, Gurap, Hooghly, on the self same day immediately after the inspection was over.
3. Upon receipt of the said complaint the police recorded a FIR and the Gurap Police Station Case No. 67, dated June 7, 2005 under Section 135 (i)(b)(c) of the Indian Electricity Act, 2003 read with Section 379 of the Indian Penal Code was registered and that gave rise to G.R. No. 604/2005 before the Learned Chief Judicial Magistrate, Hooghly.
4. After completion of investigation of the above noted case November 23, 2005 police submitted charge-sheet under Section 135(i)(b)(c) of the Indian Electricity Act, 2003 read with Section 379 of the Indian Penal Code, before the Learned Chief Judicial Magistrate, Hooghly and the learned Magistrate took cognizance thereupon. Subsequently, the learned Chief Judicial Magistrate, Hooghly having found that the offence punishable under Section 135(i)(b)(c) of the Electricity Act, 2003 is exclusively triable by the Court of the Learned Special Judge under Electricity Act, Hooghly. The Learned Magistrate by his order dated February 8, 2007 directed the transfer of the case to the respective Special Court for trial.
5. That on 1st March, 2007 the Learned Special Judge under Electricity Act, received the records relating to the above noted case, whereupon the Electricity Case No. 44/07 was registered.
6. The petitioner challenged the aforesaid proceedings on two-fold grounds, firstly, taking cognizance of any offence punishable under the Electricity Act, 2003 by any Court on a police report otherwise than on a complaint made to the Court by the authority specified in Section 151 of the Electricity Act, 2003 is legally prohibited and without jurisdiction and Secondly, all the offences committed under the said Act being exclusively triable by a Special Court constituted thereunder, no Court other than a Judge, Special Court under Electricity Act can take cognizance of offences punishable under the said Act. Thus, according to the learned advocate of the petitioner the order of taking cognizance of an offence punishable under the Electricity Act, 2003 by the Learned Chief Judicial Magistrate, Hooghly on a charge-s
