The amendment to the Electricity Act, which allows the police to investigate and submit reports under Section 135, is retrospective in operation, but the charge sheet cannot be maintained under both Section 135 of the Electricity Act and Section 379 of the Indian Penal Code due to the principle of double jeopardy.

Arunabha Basu, J.

The application under section 482 of the Code of Criminal Procedure is directed to quash the proceeding consequent to the charge-sheet filed by police in connection with a case under section 135 of the Indian Electricity Act and section 379 of the Indian Penal Code in connection with Chapra PS Case No. 86 dated 12th April, 2005.

2. It is the case or the petitioner that he was enjoying electricity connection under No. IND/239 with Consumer No. 1300533. On 12th April, 2005 the officers of the Electricity Department conducted inspection in the wheat grinding facility of the petitioner and effected seizure of certain articles including the meter. Ultimately a complaint in the form of First Information Report was lodged at the Chapra Police Station on 12th April, 2004 being FIR No. 0086. Petitioner deposited certain amount towards provisional assessment.

3. It is the contention of the petitioner that provisional assessment is highly arbitrary. Petitioner was aggrieved by the act of the authority and ultimately he filed a Writ being W.P. No. 12227 (W) of 2005 before this Court and the same is stilt pending.

4. Petitioner moved before the learned Court below for staying all further proceeding of the case but the learned Court below rejected the prayer and ultimately issued warrant of arrest against the petitioner by order dated 27.6.2005. Petitioner being aggrieved by the said order/preferred a revisional application which was registered as C.R.R. No. 1998 of 2005 for quashing the FIR. In the meantime as charge sheet was already submitted without the knowledge of the petitioner, the revisional Application became infractuous and ultimately the revisional application is dismissed on 23rd November, 2006. The charge-sheet, which is submitted by police, is illegal, as the provision under section 135 of the Electricity Act does not give any jurisdiction upon the police to conduct investigation and to submit report under section 379 of the Indian Penal Code.

5. It is also stated that prosecution for commission of offence under section 135 of the Electricity Act can only be instituted on the basis of complaint lodged by the officer/authority, as provided under section 151 of the Act and as the said section read with other section of the said Act, creates a special provision about the mode of taking cognizance and as police is not so empowered either to investigate or to submit report, then no cognizance can be taken on the basis of police report.

6. It is also submitted that charge-sheet is submitted under section 379 of the Indian Penal Code read with section 135 of the Indian Electricity Act and as such the said charge-sheet is not maintainable in the eye of law.

7. Learned Advocate appearing for the opposite party, however, submitted that the case is very much maintainable in view of the subsequent Amendment of the Electricity Act. However, it is the contention of the learned Advocate for the petitioner that the said Amendment will be prospective in operation and it cannot be given retrospective effect.

8. Consequent to the Amendment inserted by Electricity (Amendment) Act, 2007 and incorporation of section 151A in the Electricity Act consequent to the Electricity (Amendment) Act, 2007, it is now provided that cognizance of an offence punishable under the Act may be taken upon the police report filed under section 173 of the Code of Criminal Procedure.

9. Section 151A of the Act empowers the police officer in terms of Chapter XII of the Code of Criminal Procedure Section 151B which is also inserted by Electricity (Amendment) Act, 2007 provides that all offences punishable under section 135 to section 140 or section 150 of the Electricity Act shall be cognizable and non-bailable.

10. It is correct that the said Amendment came into force consequent to the Amendment Act, 2007.

11. The Amendment relates to procedural matter about taking of cognizance whether the said amendment is prospective or retrospective is no more res inte