The Electricity Act, 2003 prohibits the Court from taking cognizance of an offence punishable under the said Act except upon a complaint made by specified authorities.

S. P. TALUKDAR, J.

( 1 ) THE present case arises out of a reference under section 395 (2) of the Criminal Procedure Code made by learned Additional District and sessions Judge-cum-Judge, Special Court, Tamluk, Purba Midnapore.

( 2 ) THE backdrop of the present reference may briefly be sated as follows: on the basis of written information given by the Superintendent of Moyna group Electric Supply on 27th January, 2004, police authority started a case under section 135 of the Electricity Act, 2003 read with section 379 of the Indian penal Code, being Sessions Case No. (E) 5 (2) 2004. It was alleged that on 21. 01. 2004, one Netai Maity was found tapping energy dishonestly from incoming terminal point of meter installed by the West Bengal State Electricity board in the premises of the said person. Police after completion of investigation submitted report under section 173 of the Code of Criminal Procedure. Learned sub-divisional Judicial Magistrate transferred the said case to the said Learned court of Special Judge as the former held that it had no jurisdiction to try the case under the Electricity Act, 2003.

( 3 ) LEARNED Special Judge while referring the matter under section 395 (2)of the Criminal Procedure Code narrated the entire background of the case and sought for decision on the two issues which are set out as follows :i) Can the Special Court constituted under section 153 of the Electricity act, 2003 take cognizance of offences punishable under the said Act on the basis of police report submitted under section 173 of Cr. PC ? ii) Can the police authority invoke provision of section 379 of Indian Penal code along with section 135 of the Electricity Act, 2003 for registration of FIR with regard to theft of electricity?

( 4 ) IT appears that the learned Judge took into consideration the fact that the punishment prescribed for the offence under section 135 of the Electricity act can be extended upto three years and, as such, learned Court was of the view that such offence can be treated as cognizable and non-bailable, following the second part of the First Schedule to the Code of Criminal Procedure. The facts which constitute a cognizable offence when placed before the police authority, be it in the form of FIR, the police authority has no option but to register the case. It also cannot be denied that when a cognizable offence is reported before the police authority, the investigation has to commence subject to two conditions i. e. , (1) police officer should have reason to suspect commission of cognizable offence, and (n) he has to subjectively satisfy himself as to existence of sufficient ground for entering on investigation.

( 5 ) IN response to our request learned Advocate General, Mr. Balai Ray, appeared in the case and submitted that the functions of the judiciary and the police are complementary, not overlapping and the combination c f individual liberty with a due observance of law and order is only to be obtaine 1 by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case. Mr. Ray referred to the decision in the case of State of Haryana and Ors. vs. Bhajan Lal and Ors. , reported in AIR 1992 SC 604. It appears that in connection with the said case the Apex Court referred to the decision of the Privy Council in Emperor vs. Khwaja Nazir ahmad, reported in AIR 1945 PC 18. The Privy Council while dealing with the statutory right of the police under sections 154 and 156 of the Code within its province of investigation of a cognizable offence made the following observation:" so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority fro

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