Partly allowed

C.Najeeb v. State of Kerala

Kerala HC28 Oct 2021Crl.MC/816/2014

Case brief

AI extract

What is this about?

The High Court allowed the petition to quash proceedings under Section 379 IPC as the Electricity Act is a special statute. However, the court rejected the contention regarding cognizance under Section 151 of the Electricity Act due to a 2007 amendment permitting police reports and allowed the electricity charges to proceed.

What did the court decide?

Allowed the petition to the extent of quashing the charge under Section 379 IPC; proceedings under the Electricity Act, 2003, were allowed to continue.

C.Najeeb Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2021)

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Crl.M.C.No.816/2014

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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 ZIYAD RAHMAN A.A.

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THURSDAY, THE 28^TH DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943

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CRL.MC NO. 816 OF 2014

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AGAINST THE ORDER/JUDGMENT IN CC 2/2013 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT-VII, ERNAKULAM/III ADDITIONAL MACT,

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ERNAKULAM

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PETITIONER/SOLE ACCUSED:

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C.NAJEEB, S/O.LATE K.K.MOIDU, MANAGING DIRECTOR, CHICAGO PLAZA, RESIDING AT THAMANNA, S R M ROAD, ERNAKULAM-18.

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BY ADV SRI.MANSOOR.B.H.

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RESPONDENT/STATE:

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1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (REPRESENTING THROUGH STATION HOUSE OFFICER, CENTRAL POLICE STATION, ERNAKULAM-682 031)

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2 ASSISTANT ENGINEER, KSEB, ELECTRICAL SECTION, COLLEGE ROAD, ERNAKULAM. (ADDL.R2 IS IMPLEADED AS PER ORDER DATED 06.02.2014 IN CRL.M.A.NO.1429/14 IN CRL.M.C.816/2014)

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R1 SRI.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR. R2 BY SRI.A.ARUNKUMAR, STANDING COUNSEL

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

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28.10.2021, THE COURT ON THE SAME DAY PASSED THE

FOLLOWING:

Crl.M.C.No.816/2014

O R D E R

The petitioner, who is the sole accused in C.C.No.3/2013 on the file of the Additional District and Sessions Court-VII, Ernakulam, has filed this Crl.M.C. seeking to quash all further proceedings therein. The aforesaid Sessions Case arises from Crime No 976/2006 of Ernakulam Central Police Station.

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Offences alleged against the petitioner are under Sections 135, 138 and 150 of Electricity Act and Section 379 of IPC. The aforesaid crime was registered against the petitioner, on the basis of an inspection conducted by the Anti Power Theft Squad of Kerala State Electricity Board, on 3.07.2006. During the aforesaid inspection, it was found that the petitioner was indulging in theft of energy through a tampered meter. The police, after completing the investigation has filed Annexure-A charge sheet for the offences mentioned above and cognizance of the same was taken thereon by the jurisdictional Magistrate. Later when a Special Court was constituted for the offences under the Electricity Act, 2003, the case was transferred to the Special Court i.e Additional Sessions Court

Crl.M.C.No.816/2014

VII, Ernakulam.

The basic contention raised by the petitioner is that as per Section 151 of Electricity Act, 2003 [as stood prior to the amendment vide Electricity (Amendment) Act, 2007 (Act 26 of 2007)], no court can take cognizance of the offence under Electricity Act, except on a complaint made by the authorities mentioned therein. According to him police is not one among the authorities mentioned therein and the said provision does not authorize the court to take cognizance on a final report submitted by the police.

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It was also contended that Section 379 IPC will not be attracted as the theft of electricity is governed by a special statute namely Electricity Act, 2003. Since a special provision dealing with theft of electricity is contemplated under Section 135 of Electricity Act, offence under Section 379 IPC is not attracted.

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Heard Sri.B.H.Mansoor, learned counsel for the petitioner, Sri.A.Arunkumar, learned standing counsel for the Kerala State Electricity Board and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor.

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Crl.M.C.No.816/2014 4

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As regards the offences under the provisions of Electricity Act, 2003, the contention raised by the petitioner is covered against him as per judgment in Vishal Agarwal and Another v. Chhattisgarh State Electricity Board and Another

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[2014 (1) KLT 1013] . It is pertinent to note in this regard that, as per the amendment brought in with effect from 15.06.2007 a proviso was added to Section 151 of the Electricity Act, 2003, permitting the Court to take cognizance of the offences under the Act, upon a police report as well. In the said judgment, the Honourable Supreme Court categorically observed that the amendment brought to Section 151 of Electricity Act with effect from 15.06.2007, enables the court to take cognizance on the basis of final report of the police and such amendment is clarificatory in nature. Thus it was held that, the permission granted as per the amended provision, is applicable to all proceedings including the cases where the date of occurrence of the offence is prior to the amendment. In the light of the principles laid down as above, the contention of the petitioner with regard to the cognizance taken on the offences under Section 135, 138 and 150 of

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Crl.M.C.No.816/2014 5

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the Electricity Act are not legally sustainable.

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However, with regard to the contention of the learned counsel for the petitioner that the offences under Section 379 IPC is not attracted, I find some force. The allegation of theft of electricity and the penal consequences are exclusively covered under Section 135 of the Electricity Act, 2003 which is a special statute. On the other hand, the offence under section 379 of IPC is a general provision in a general statute dealing with the very same nature of offence. It is a well settled position of law that, special statute will prevail over the general statute. Thus, when the special statute provides for a separate offence and separate procedure for trying the same, the offence under the general statute for the very same cause of action, would not get attracted. In such circumstances, charging offences under Section 379 IPC, along with Section 135 of the Electricity Act, is not legally sustainable. My view is fortified by the decision of Punjab and Haryana High Court in Mahalkshmi

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Spinner Ltd Vs State of Haryana (2007 Crl. L.J 429).

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In such circumstances, the contention of the learned counsel in this regard is to be accepted. In the above

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Crl.M.C.No.816/2014 6

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circumstances, Annexure-A charge sheet, only to the extent of charging offence under Sections 379 IPC is quashed. While allowing the proceedings to go on in respect of the offences punishable under Electricity Act, 2003, it is clarified that, the petitioner shall be entitled to raise all his contentions before the trial court and shall also be entitled to avail the compounding facility of the offences under Electricity Act, 2003, as contemplated under section 152 of the said Act.

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Crl M.C is disposed of with the above findings and directions.

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Sd/- ZIYAD RAHMAN A.A. JUDGE

DG/28.10.21

Crl.M.C.No.816/2014

APPENDIX OF CRL.MC 816/2014

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