Allowed

Nizar Aziz v. State of Kerala and Others

Kerala HC2 Mar 2010Crl.MC/387/2010

Case brief

AI extract

What is this about?

High Court allowed the petition and quashed the criminal cognizance taken by the Magistrate. The court held the cognizance under Section 379 IPC was unsustainable as electricity is not movable property and the cognizance under Section 135 Electricity Act was invalid as the enabling provision in the Act did not exist at the time.

What did the court decide?

Crim.MC.No.387 of 2010 allowed; C.C.No.385/2006 cognizance dated 31.7.2006 quashed.

Nizar Aziz Vs State of Kerala and Others — Cheque Dishonour | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR

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TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931

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Crl.MC.No. 387 of 2010(C)

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-----------------------------------(C.C. NO. 385/06 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, VARKALA, CRIME NO.82/05 OF KALLAMBALAM POLICE STATION)

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PETITIONER/1ST ACCUSED:

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----------------------------------------

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NIZAR AZIZ, NIZAR NIVAS, BEACH ROAD, KOLLAM.

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BY ADV. MR.BRIJESH MOHAN.

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RESPONDENTS/STATE & COMPLAINANT:

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------------------------------------------------------------

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1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2. THE SUB INSPECTOR OF POLICE, KALLAMBALAM POLICE STATION, KALLAMBALAM.

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R1 & R2 BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR.

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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prv.

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M.Sasidharan Nambiar, J.

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Crl.M.C.No.387 of 2010

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ORDER

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Petitioner is the first accused in C.C.No. 385/2006 on the file of Judicial First Class Magistrate's Court, Varkala, taken cognizance for the offences under Section 379 of Indian Penal Code and Section 135 of Electricity Act on Annexure-II final report submitted by Sub Inspector of Police, Kallambalam. This petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken.

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Learned counsel appearing for the petitioner

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and learned Public Prosecutor were heard.

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Learned counsel argued that first proviso to Section 151 of Electricity Act, which enables the court to take cognizance on a report submitted by a police officer under Section 173(2) of Code of Criminal Procedure, was inserted by Act 26 of 2007, which came into force only with effect from 15.6.2007 and as held by this Court in Paramasivam v. Union of India (2007 (2) KLT 733), learned Magistrate was not competent to

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CRMC 387/10

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take cognizance of the offences on a final report and therefore, the cognizance taken can only be quashed. Learned counsel also argued that though cognizance was taken for an offence under section 379 of Indian Penal Code, as declared by this Court in Paramasivam's case (supra), an offence under Section 379 cannot be attracted in respect of theft of electricity, which is not a movable property and therefore, the cognizance taken for both the offences can only be quashed.

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As is clear from Annexure-II final report submitted by Sub Inspector of Police, it was received by the court on 14.3.2006 and the cognizance was taken only on 31.7.2006. Therefore, when the cognizance was taken, first proviso to Section 151 of Electricity Act was not available and as Section 151 then stood, learned Magistrate can take cognizance of the offence under the Electricity Act only on a complaint as declared by this Court in Paramasivam's case (supra). As cognizance was taken not on a complaint, but on Annexure-II final report, the cognizance taken is bad.

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It was held by this Court in Paramsivam's case (supra) that electricity is not a movable property,

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CRMC 387/10

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which can be moved with the dishonest intention of taking it and as there is no deeming provision similar to the one contained in Section 39 of Indian Electricity Act, 1910, as it stood before the amendment introduced on 12.8.1986 and so, the accusation that an offence was committed under Section 379 of Indian Penal Code in respect of electricity is unsustainable. In view of the decision of this Court, it can only be found that an offence under Section 379 of Indian Penal Code is not attracted. If that be so, the cognizance taken for the said offence can only be quashed.

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Petition is allowed. C.C.No.385/2006, taken cognizance by Judicial First Class Magistrate, Varkala, for the offences under Section 379 of Indian Penal Code and Section 135 of Electricity Act, is quashed. It is made clear that quashing of the cognizance taken will not preclude the learned Magistrate from taking cognizance as provided under Section 151 of Code of Criminal Procedure.

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2^nd March, 2010 tkv

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(M.Sasidharan Nambiar, Judge)

Nizar Aziz v. State of Kerala and Others

Case brief

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Nizar Aziz v. State of Kerala and Others

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