IMPORTANT POINTS
The occurrence took place from 11.8.1999 to 16.10.1999. The learned Magistrate took cognizance of the case only on 14.11.2003. No cognizance could have been taken on 14.11.2003 in view of the bar contemplated under Section 468 of the Cr.P.C. However, the learned Assistant Public Prosecutor filed an application on 04.10.2005 before the learned Magistrate for condoning the delay and also explaining the delay at a later stage. Such an application was filed before taking evidence in this case. PW1 was examined before the trial court on 27.1.2006.

ORDER :

1. This revision petition is filed under Sections 397 and 401 of the Criminal Procedure Code seeking to set aside the order passed by the learned Judicial First Class Magistrate, Ranny in C.M.P. No. 4685/2005 in C.C. No. 588/2003 and to drop the proceedings against the revision petitioner in C.C. No. 588/2003.

2. The revision petitioner is the accused in C.C. No. 588/2003 before the trial court. The allegation against him is that he had committed theft of energy from the service connection obtained for an Industry under the name and style M/s Modern Rock Mining by tampering with the electricity meter during the period from 11.8.1999 to 16.10.1999. An FIR was registered as Crime No. 292/1999 at the Ranny Police Station on 18.10.1999 under Section 39 of the Indian Electricity Act, 1910 (hereinafter referred to as ‘the Act’).

3. Section 39 of the Act reads as follows:-

“39. Theft of energy - Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than one thousand rupees, or with both and if it is proved that any artificial means or means not authorised by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer.”

4. The case was registered against the accused on 18.10.1999 and the police filed final report in the case after investigation before the court on 01.09.2003. The learned Magistrate took cognizance of the case on 14.11.2003 and numbered the case as C.C. No. 588/2003. Upon summons, the accused entered appearance before the trial court and filed a petition under Section 468 of Cr.P.C. as C.M.P. No. 4685/2005 seeking permission to drop the proceedings against him. The learned Magistrate dismissed the petition stating that there is no infirmity in taking cognizance. An extract of the order dated 23.12.2005 in C.M.P. No. 4685/2005 is stated as hereunder:-

“The petition to stop further proceeding as the case is allegedly barred by limitation prescribed u/s 468 Cr.P.C. The allegation against the accused is that he committed theft of electricity by removing two wires near the electric meter in his Rock Mining Industry at Kompanoli. The learned APP filed an objection along petition to condone delay filed by the SHO Ranny Police Station. It is stated by the SHO that the file has been misplaced and hence the delay has occurred. It is alleged that the accused is in the regular habit of committing theft of electricity. Considering facts of the case regarding delay, this court finds it just and proper to condone the delay. There is no infirmity in taking cognizance and the CMP is accordingly dismissed.”

5. Heard the learned counsel for the revision petitioner Sri. M.V.S. Namboothiri, learned Public Prosecutor Sri. M.S. Breeze and Sri. A. Arunkumar, learned Standing Counsel for the Kerala State Electricity Board Ltd.

6. The learned counsel for the revision petitioner Sri. M.V.S. Namboothiri contended that the learned Magistrate was not empowered to take cognizance for the offence under Section 39 of the Act, 1910 against the accused under Section 468 of Cr.P.C. as the three year limitation period prescribed therein had already expired. The learned counsel further contended that the prosecution had not even approached the trial court with a plea to condone the delay. According to the learned counsel, it was only after the revision petitioner had filed a petition to drop the proceeding, that the prosecution could file an objection with an application to condone the delay. Thus, it is argued that there is clear violation of the provisions under Section 473 of the Cr.P.C.

7. Coming to the facts of this case, it is clear that the offence involved is barred by limitation and the offence alleged to have been committed is not a continuing offence. Al