K. Balakrishhan Nair, J.

W.P.(C) No.22972/2006:

The main point that arises for decision in this Writ Petition is concerning the validity of Rr.11 and 12 of the Electricity Rules, 2005. The Writ Petitioner also challenges the proceedings in C.C.No.183/2005 against him on the files of the Judicial First Class Magistrate's Court I, Palakkad.

2. The brief facts of the case are the following: The petitioner is the Managing Director of a private limited company, which is a consumer of High Tension electricity. He is the accused in C.C.No.183/2005 on the files of the Judicial First Class Magistrate's Court I, Palakkad. The allegation against the petitioner is that he has committed the offences punishable under Ss.135, 138 and 139 of the Electricity Act, 2003. A crime was registered against him, on the basis of a petition filed by the 3rd respondent Assistant Executive Engineer before the Sub Inspector of Police, Walayar Police Station, on 22.12.2004. The police completed the investigation of the crime and tiled Ext.P1 final report under S.173 of the Criminal Procedure Code, on 31.1.2005. On summons, the petitioner appeared before the learned Magistrate. He raised an objection before the trial court, by fling a petition, contending that the offences under the Electricity Act, 2003 can be tried only by a special court and the criminal prosecution can be launched and continued only on a private complaint filed by a competent authority/officer and not on the basis of the report fled by the police. The petitioner submits the Electricity Board and the Assistant Pubic Prosecutor supported the proceedings before the Magistrate, relying on Rr.11 and 12 of the Electricity. Rules, 2005, framed under the Electricity Act, 200. Ext.P2 is the said. Rules, published in the Gazette of India dated 8.6.2005, The petitioner further submits; Rr.11 and 12 of Ext. 2 Rules are ultra vires of the provisions of the Electricity Act, 2003. Since the learned Magistrate is proceeding with the trial of the case, ignoring the objection of the petitioner, this Writ Petition is filed, challenging Rr.11 and 12 of the Electricity Rules, 2005. He seeks a declaration that only a special court constituted under the Act has jurisdiction to try the offences under the Electricity Act, 2003. He seeks a further declaration that the Judicial First Class Magistrate I, Palakkad has no jurisdiction to proceed with the trial of C.C.No.183/205. He prays for appropriate orders to restrain the Magistrate from proceeding with the trial of the case.

3. In support of the above relief’s sought, the following grounds are raised in the Writ Petition. Rule 11 of the Electricity Rules, which provides that the jurisdiction of courts other than special courts shall not be batted till the special courts are constituted, is ultra vires of the provisions of the Electricity Act. The provision contained Rule 12, which authorises the police to take cognizance of an offence punishable under the Act on a complaint made by the competent officer, is ultra vires of the provisions of the said Act. Similarly, the provision contained in R.12, which authorises the police to investigate and file a report before the court, is also ultra vires and unauthorised. The said provision which enables the police to investigate an offence under the Electricity Act, is ultra vires of S.155 of the Cr.P.C. Therefore, the petitioner prays for granting all the relief’s sought in the Writ Petition.

4. The 3rd respondent has filed a statement, resisting the prayers in the Writ Petition and supporting the action taken by the police in the investigation of the case. He points out that the impugned Rules are intro vires and contentions to the contrary are incorrect. The petitioner has committed theft of electrical energy, causing a loss of Rs.7,11,76,273/- to the K.S.E.B. So, the said respondent prays for dismissal of the Writ Petition.

5. Heard the learned counsel on both sides. Mr.V.Giri, learned counsel appearing for the